 And now after that wonderful opening session, it is my great pleasure to introduce to you the moderator for our second session, Archivist of the United States, Alan Weinstein. Welcome again. Let me briefly introduce the panel, although I think they're all well known to you. To my left is Professor Laura Kellman, who is Professor of History at the University of California at Santa Barbara. Professor Kellman. To Professor Kellman's left is Professor Doug Brinkley. From all of you know, Doug is not only one of our finest historians, but arguably one of our most prolific ones. So he always has a book out, I don't know how he does it. At least one. Doug, you're still a professor at Tulane at this point. And to Doug's left is the person who just told me to speak into the microphones, my old friend Nina Tottenberg. And Nina is of course the very pride winning correspondent for National Public Radio on all fairs, legal and otherwise. And to Nina's left is Ambassador Boyden Gray, who these days, I want to get your title correctly, these days is the US representative to the European Union. And welcome to Boyden here. But also as someone who's clerked for Earl Warren and who was a partner in a major law firm before this overtook him. Let me do two things. Let me sort of lay out, this is a very free-form panel. We know that by the nature of the subject itself. The authors of this subject decided that they would encourage us to tell anecdotes or at least to tell inside stories as I believe the way they phrased it in the advertisement for the thing. Well, I'm gonna leave it to everybody here whether they want to tell an inside story or not. I'm gonna raise two questions just to see whether they will stir some debate in the room. I wrote a book with me by someone I think some of you know, a new William Rehnquist, his little book on the Supreme Court. And former Chief Justice said at one point that Webster's dictionary defines the word pack as in court packing. As quote, to choose or arrange a jury committee, et cetera, in such a way as to secure some advantage or to favor some particular side or interest. Unquote. Thus a president who sets out to pack the court, Rehnquist says, does nothing more than seek to appoint people to the court who are sympathetic to his political or philosophical principles. There is no reason in the world why a president, he continues, should not do so. One of the many marks of genius that our constitution bears is the fine balance struck in the establishment of the judicial route. He then goes on to say, presidents who wish to pack the Supreme Court like murder suspects in a detective novel must have both motive and opportunity. Here even Madison had both and yet even he failed. Let's talk about court packing a little bit and the definition of that. And has there been court packing since the famous court packing? Let's also raise a question that I've always been fascinated with. How do we describe, at what point do we begin to describe a particular court with the identifier of the Chief Justice or with one member whose court it supposedly is? What defines a court in terms of periodizing the period, this very long period that we're dealing with? I'm just gonna let you talk about that or anything else you'd like to talk about given the period limitations and Laura will start with you. You need that social task. One obvious question during the Truman-Clinton period is the increasing acrimony of the confirmation process. Between 1811 and 1894, more than one quarter of the nominees to the court were rejected. But from 1894 to 1967, only one nominee out of 64, Judge Parker was rejected. The confirmation process was only occasionally contentious as in the nominations, nomination battles of Brandeis and Chief Justice Hughes. One might even argue that the Senate during this earlier period in for most of the 20th century wasn't doing its job. Wouldn't the country in Charles Whitaker have been better off if the Senate had rejected Whitaker's nomination by Dwight Eisenhower? Whitaker was miserable on the court and had to be hospitalized for depression. It's often said that the Bork nomination rang in the modern era of partisan court confirmation proceedings in which senators, as Ted said, focused on nominees ideology with the implication being that it was the liberals who first Borked a conservative nominee. The politicization of the confirmation process is sometimes considered the Bork battle's most haunting legacy. During every presidential election since 1964, fewer Americans had participated in the political process. But as you'll recall, they turned out in huge numbers for and against Bork and they watched the hearings on TV. Thus, Ethan Bronner suggested that the combination of declining voter turnout and intense interest in the Supreme Court that you see during the Bork battle left us with one overriding question. Have Americans relinquished the power to define what it is to be an American to the US Supreme Court? It's a good question, but I'd argue that the politicization of the modern confirmation process began well before Bork when conservatives blocked Lyndon Johnson's appointment of a fortice to succeed Earl Warren as Chief Justice in 1968. In the quarter century afterwards, four of 18 nominations were rejected. Fortice in 68, Hainesworth in 69, Carswell in 1970, Bork in 1987. One nomination wasn't acted on, Thornberry, and two were withdrawn, Douglas Ginsburg and Myers. And there were struggles over three others. The nomination of Justice Rehnquist as an Associate Justice and as Chief Justice and the nomination of Justice Thomas. Rather than seeing the politicization of the confirmation process as a two-step process, as Ted White just suggested, I see it as a one-step process with the Fortice Chief Justice nomination in 1968 being the Rubicon. And the Warren Court has cast a very long shadow. When the Nixon, Reagan, Bush won and Bush two administrations condemn liberal judicial activism, they use the phrase often as a synonym for the Warren Court. Conservatives depict judicial activists as politically liberal judges who ignore the Constitution's plain words and use judicial power to substitute their own preferences for the will of the people. Judicial conservatives on the other hand are said to practice judicial restraint, defer to legislative bodies, and to respect rather than overturn the policy choices made by Americans through their elected representatives. Now without a doubt, the Warren Court was both liberal and activist, expanding civil rights and civil liberties. To conservatives, its activism reflected the political backgrounds of so many of its members, Warren had been governor, black senator, Goldberg, secretary of labor, Fortice under secretary of interior. These were fellows who had been active in politics who felt comfortable, conservatives said, transmuting constitutional law into politics. And the Fortice Chief Justice nomination hearings in 1968 became an occasion for rehearsing these accusations against the Warren Court. When Johnson had nominated his advisor and his attorney, Abe Fortice to the court in 1965, the Senate had overwhelmingly approved the nomination. This was the high tide of American liberalism. Fortice and Johnson, of course, remained close after that. You can find a typical day in Justice Fortice's life on any White House diary sheet in the Lyndon Johnson Library. 830, Fortice might receive a call from Johnson about airline strike negotiations. 1130, he might be at the White House for a meeting about Vietnam. Then to the Supreme Court for an afternoon of work, punctuated by telephone calls from the White House on the special red phone in Fortice's office. And finally to the White House for a state dinner that might well feature entertainment that Fortice and enthusiastic violinists had arranged. Meanwhile, the Warren Court marched forward with Fortice's enthusiastic participation. As a Supreme Court Justice, he joined enthusiastically in the Warren Court's liberal judicial activism and wrote opinions expanding civil rights and civil liberties, including the rights of accused criminals. Well, by 1968, many had come to believe that the liberal approach that the Johnson administration in the Warren Court adopted on race and crime was not working. Though all presidential candidates tried to exploit the law and order issue in 68, as Ted suggested, Nixon did so best. The Warren Court became an issue with Nixon blaming crime on the Warren Court and pledging that as president, he would appoint justices who favored strict construction. One of the many who listened to Nixon was Chief Justice Warren. That was why he went to the White House on June 13th of 1968 and handed Lyndon Johnson a letter, reading, I hereby advise you of my intention to resign as Chief Justice, effective at your pleasure. Clearly, Warren and Nixon enemy thought that Nixon might win the election and was terrified by the sort of law and order Chief Justice that Nixon would appoint. At their meeting, Warren told Johnson that he hoped that the president would appoint a new Chief Justice who shared Warren and Johnson's commitment to social justice. Johnson announced he was nominating Fortis two weeks later. Initially, it seemed that the Fortis nomination would be approved, but it was ultimately blocked by Senate filibuster. Candidate Nixon encouraged conservatives to oppose the Fortis nomination on the grounds that its success would mean a continuation of the Warren court's liberal judicial activism. But Nixon kept largely silent about the Fortis nomination, limiting himself only to the general comment that the next president should name the next Chief Justice. Since Fortis was Jewish, Nixon was afraid that open opposition to the nomination would hurt his chance of getting the Jewish vote. And so Republicans and conservative Democrats in the Senate did Nixon's work for him, alleging that Fortis was a crony of LBJ and had breached the principle of separation of powers between the White House and the judiciary by continuing to advise Lyndon Johnson as a Supreme Court justice, though Supreme Court justices had long advised presidents. Conservatives, Republicans and Democrats vociferously attacked the Warren court for coddling criminals and protecting obscenity. Fortis undertook to defend himself in the court by becoming the first Chief Justice from the court's ranks to testify before the Senate Judiciary Committee. There he perjured himself. He said that Lyndon Johnson had never discussed with him any matter that might come before the court, which wasn't true. He maintained he had attended White House meetings on Vietnam very infrequently and had said little at them when he had attended the Moffin and said a great deal. Add his relationship with Johnson to conservatives disapproval of the Warren court. At one point they berate him for an opinion that was handed down seven years before he joined the bench and there are sense that they have a chance to change the direction of the court and you have a recipe for defeat. Johnson's lame duck status and Fortis' identification with both Johnson and the Warren court made his nomination too tough a proposition. So by the time evidence surfaced late in the game that Fortis had accepted $15,000 in lecture fees for teaching a summer's course, money raised by his former law partner from Fortis' former clients, the nomination was already doomed. But the lecture fees were nails in the coffin. Like Bork's nomination, the Fortis Chief Justice nomination was defeated largely for ideological reasons. The experience with Fortis and other Warren court members apparently turned conservatives against appointing politicians to the court. Interestingly as John Dean tells us in his great book on the Rehnquist choice, Nixon himself did not believe that his Supreme Court justice needed prior judicial experience. Nevertheless, as conservatives called for justices who practiced strict construction and judicial restraint, they increasingly said the court needed justices with prior experience judging. Except for Powell and Rehnquist whose nominations were the result of last minute scrambling by the Nixon administration, conservatives came to demand prior judicial experience usually on the federal appellate court except in the case of Justice O'Connor in nominees after Fortis. With what result? The Rehnquist court demonstrated that conservative justices can be as activist as liberal ones. It declared more federal laws unconstitutional in a shorter period than the Warren court and cut back congressional power. Now, the only justices appointed between 1937 and 1967 who had prior judicial experience were Rutledge, Minton, Harlan, Whitaker, and Stewart and Marshall. Now everyone is expected to have it. In his new book, The Next Justice, Chris Eisgruber persuasively contends that prior judicial experience adds nothing to the process. When commentators criticized the Meyers nomination because Meyers had no prior judicial experience, I cringed. The Supreme Court's docket is almost completely discretionary. So the justices job is very different from that of other federal judges. If presidents insist on prior judicial experience, they should select those who have been state Supreme Court judges like Brennan or Souter because those dockets are also discretionary. My modest suggestion and concluding is that we recognize that the expectation of prior federal judicial experience is an historical accident related to the reaction against the Warren court and stop talking about federal judicial experience. What Supreme Court justices need are legal skill and an understanding of the purposes of judicial review. Certain law professors, lawyers, politicians, journalists, a Justice Totenberg comes to mind, scholars and others, and others are as likely to- I'm a college dropout, I can't do it. Are as likely to have these gifts as judges. Thank you. I think you'll agree we're off to a running start. Doug Brinkley. By the way, people can, as they choose, go to the microphone or speak from, there's no enforced procedure here. Well, good afternoon. I want to thank the National Archives for holding this incredible event with all the presidential libraries contributing and also one of the people on the front row who always does so much to promote not just Franklin Roosevelt, but presidential politics, Ambassador William Vanden Heuvel of the Franklin Eleanor Roosevelt Institute. Thank you and I would be remiss if to say I wasn't slightly nervous to be talking in front of Justice Sandra Day O'Connor and it's so wonderful for you to come here and be with us and listen to historians and journalists and legal scholars talk. So your presence here graces us tremendously and thank you for being here. I thought I'd begin trying to just sort of summarize a little bit of how presidents, particularly recent presidents, pick justices and the anecdote I decided to start with is if you could cut to June 13, 1967 when Lyndon Johnson is in the White House and he doesn't think he's gonna pick Thurgood Marshall and he thinks he is then he decides not to and Thurgood Marshall was generally depressed. He wanted the job after all it's 1967 Lyndon Johnson had just pushed through his 64 and 65 historic civil rights legislation. It would have been a crowning achievement to have an African-American join the Supreme Court. But out of nowhere on the 13th, Thurgood Marshall got a phone call from Ramsey Clark speaking to his secretary and Clark said I wanna see you immediately. He, Attorney General Clark went, saw Thurgood Marshall say get to the White House the president wants to talk to you. He sat there and met with Lyndon Johnson in the Oval Office and they did just general chit chat for a few minutes and this is a transcript, I was just gonna read you for one second from Columbia University's oral history interview of Thurgood Marshall and so this is Marshall talking. He said we simply chatted about all sorts of things for a few minutes and suddenly Johnson looked straight at him and said you know something Thurgood? And he said no sir, what? He said I'm gonna put you on the Supreme Court and his immediate answer was oh yipe. He asked for clarification saying what did you say? And Johnson said that's it and he said okay sir. Johnson had already had the press in waiting so Marshall Thurgood Marshall walks out they make the announcement and someone nervous Thurgood Marshall all happened so quickly on him said well can we please can I call my wife to tell her this before she hears about it on the wires and he said you haven't told Sissy yet? And Thurgood Marshall said how could I? He just told me you've been with me every minute and he dials as wife gets on and immediately Johnson grabs the telephone as you all know he was apt to do and says Sissy this is Lyndon Johnson. He said yes sir Mr. President and he said I just put your husband on the Supreme Court and she said oh I'm sure glad I'm sitting down and then Johnson got off the phone looked at Marshall and he said I guess this is the end of our friendship. So Thurgood Marshall and Marshall said yep just about we'll be no more of that and Johnson was a little startled by that answer and he went on and said Thurgood Marshall said well look you know Mr. President about Tom Clark and Harry Truman they were as close as anybody and then that whole steel controversy came up and Tom had to really sock it to Harry and it strained their friendship talking about the Truman when he seized control of the steel industry and the Supreme Court had declared the action unconstitutional and Johnson at that point looks at him and says well you wouldn't do like that to me and he looked at him and said yeah yes I would and you know and then no sooner than and sort of snapped his finger I would turn on you like that if I had to and Johnson looked paused for a minute and said well that's the way I want it. Now whether Johnson really wanted it that way and whether presidents really want a somebody who's gonna be independent minded, somebody who's not a rubber stamp is doubtful Johnson probably wouldn't have minded a Thurgood Marshall that would be upsetting other administrations but when you're president you'd like to feel you have the court on your side and in looking at these factors when we pick who is are going to be our nominee for the Supreme Court I think you can get it down to a handful of general things to keep in mind at any given moment and it doesn't matter what the administration is versus the timing of the vacancy you know that moment when it suddenly happens we have an election coming up people are very Democrats are pushing you know Hillary Clinton for example very hard saying you know there may be two justices to fill and if we don't the right will have the Supreme Court forever the timing of appointments it's largely out of control the composition of a Senate and at any given time is a key factor the I think the president's public approval rating and when they're popular it's certainly much easier you have I think the whether the attributes of the departing justice who just left sometimes you wanna pick somebody who somehow is in a tradition of that particular justice it's a consideration that gets weighed in and the finally a realistic pool of candidates we may have you know as Nina just said many of us adore her but if she didn't finish her and ever be you know her schooling as she said she's probably not realistic even though many of us would want her and so it weeds out a lot of people incidentally all of the Supreme Court justices have one thing in common really it's not in the constitution they're lawyers by and large I mean that's what where people immediately are starting to look at lawyers ironically in the founding of our country the Supreme Court was not considered that big of honor early on in 1791 for example John Rutledge resigned from the court to become the head of the Supreme Court of South Carolina saying it was a more important post at a state level and John Jay had been on the Supreme Court he ended up of course our first Chief Justice John Jay and he quit because he wanted to be Governor of New York which he thought was more important than being Chief Justice of the Supreme Court when President Adams wanted to get Jay back in the court his response John Jay was that the court lacked and this is an exact quote energy, weight, and dignity compared to being Governor so it changes as we know in 1803 with Marbury versus Madison in many ways for how coveted becoming Supreme Court justices I won't go through all the different you know over 150 people nominated for the Supreme Court sometimes they get rejected by Congress sometimes they're withdrawn by a President sometimes something will happen or it'll elapse in the Senate but four out of every five of our nominations in American history for Supreme Court have been passed the besides there being lawyers we've been talking about these other considerations one that I think or one that I think's becoming less prevalent is one that's been touched on today and that's picking a major political figure it used to be you'd always hear it and you still get rumors Mario Cuomo will come into the court and it turns it doesn't happen as much but certainly Franklin Roosevelt did that with Hugo Black Senator of Alabama he did it with Frank Murphy Governor of Michigan their stories about Dwight Eisenhower doing it with Earl Warren as a kind of a payback for backing him in 1952 certainly Warren Harding did it in 1921 when he had appointed William Howard Taft who went from the presidency to the Supreme Court but the it's been touched on by a few scholars today you also see presidents sometimes making appointment decisions in a sense of bipartisanship if it's needed usually if there's a crisis at hand Abe Lincoln picked a Democrat Steven Field in 1863 during the Civil War you have FDR in 1940 has been alluded to with Harlan Fitz Stone he also of course put people like Henry Frank Knox and Henry Stimson Republicans in kind of get bipartisanism for World War II Eisenhower in 56 specifically when he picked William Brennan wanted a Democrat particularly a Catholic Democrat was the specification but I think this appointing of politicians is eclipsed in many ways today presidents tend to choose those who are sitting judges you know six in fact of our current judges were from federal courts beforehand I think no longer is a nominees political prominence more important than their philosophical compatibility with the sitting US president and the legacy that that president wants to push forward the problems that you know with the Senate always having no real criteria and each member in the US Senate don't have a rule for picking it when a nominee comes from them they can freelance it and do what they want and you have moments where good people are shot down John Parker in 1930 Herbert Hoover had picked him but he was considered anti-labor and was nixed of course Nixon and having trouble with his two Supreme Court choices and most famously in recent memory as Laura has mentioned Bork, Robert Bork who was really rejected for philosophical reasons that there was a need to kind of stop the Reagan revolution on the park of Democrats the with Bork brings to mind though as one reason presidents do want to have somebody that's like a rubber stamp comes out with you can see a great story with Theodore Roosevelt TR was a booming intellectual loved to have the smartest people picked Oliver Wendell Holmes Jr. to the Supreme Court and there shortly just two years later Holmes voted against major TR antitrust case and Roosevelt was so livid that Holmes so wasn't a rubber stamp, wasn't grateful here's Roosevelt's comment about Holmes I could carve out of a banana a judge with more backbone than Holmes the, I think you get that you see Dwight Ise I think this comment by Eisenhower incidentally on Earl Warren that was one of my biggest mistakes I ever made picking Warren it was a comment I made and it's been used to the law but there was Eisenhower's appointment of federal judges and Warren he was very proud of a lot of that Warren did also it gets a little may but it's another case of Warren in some ways turning on Eisenhower certainly Nixon felt the pangs of that when a number of his judges voted against him in the United States versus Nixon with the subpoenaed White House tapes during Watergate the one of the final comments I want to make I think there were a couple of sea changes in this nomination process in modern times which is what we're supposed to focus on I think Truman when you look at Truman had four nominations to Supreme Court all of them he knew personally very well Burton, Vincent, Clark, Minton they're all friends of his Eisenhower at 52 called what Truman's appointments cronyism and Ike appointed Herbert Brownell to start establishing a criteria for nominations based in part for the first time on American Bar Association ratings and how have they operated at Judge that kind of scrutiny we're getting today Eisenhower kicked in yet Eisenhower wasn't pure on this either he wanted to try to reform a kind of cronyism of appointing yet he picked Earl Warren because he gave him political support his next appointee or nominee John Marshall Harlan II was the law partner of Brownell who was supposed to be doing the kind of screening oversight and then he picked Brennan specifically because he wanted a Catholic Democrat at that moment of time and when he went with Whitaker and Stewart he was looking for a moderate to conservative particularly wanting somebody from Ohio I mean so he had a kind of thing so all of these factors I think come into the mix what we can say as historians is that the Warren Court was a revolution in this country and once the Supreme Court started with the Warren Court becoming a focal point of controversy into the 60s with all the sweeping things that it did and you started by 1970s and 80s having a general trend among Senate committees which would intensify their scrutiny of presidential nominations they were no longer unhurried examinations the Senate in fact this intense personal scrutiny became part of almost a mandate that a Senate judiciary committee would take upon itself I think because of that now it's a very difficult and because of these five, four decisions we're at this place here where who gets picked means so much the stakes seem so high that I don't know how people survive being nominated to you know it's to be looked at every decision you ever made any letter people go back to childhood scribbles you know what movies you watch I mean it's become a very difficult you know process right now and I do also notice a trend that I think you're starting to see younger it used to be as TR's time you would pick a senior person by age I think you're starting to get younger justices because presidents want their legacy to reflect decades down the line they don't want to pick somebody in the court who might get ill or quit 10 years from now they're trying to look at somebody who could be there for 20 or 25 years thank you I'll probably talk plenty today too but not right this minute I do think all's fair in love war and journalism and therefore that Justice O'Connor should be able to get on national public radio this evening and give her account of what I say here today it's so difficult I think to compare the nomination process in different periods of time and to peg what the reasons are for those differences there's no question that it's very different today than it was 10 years ago 20 years ago, 50 years ago 75 years ago we didn't even have people appearing before the Senate Judiciary Committee I think the first time was in the 1930s so everything's different our mode of communication our instant communication is different but you can tell one thing and that is that if a president does not want to have a big confirmation fight he doesn't have to I say he because so far we haven't had a she there are ways to avoid it there's a famous story about the nomination of Justice Cardoso who the president, President Hoover showed a list of potential nominees or people he was considering to I think it was the chairman of the Judiciary Committee and the chairman said well the list is fine but it's upside down Cardoso had been last and Cardoso got the nomination President Clinton was toying with the idea first of Cuomo who eventually turned him down then with Bruce Babbitt and Senator Hatch told him that while he couldn't be sure that he would be defeated there would be a lot of votes against Babbitt particularly from the West where there were people who very strongly disagreed with his policies as Secretary of Interior and therefore and so Clinton said to Hatch well who would you suggest and Hatch by his own statement said well I think you would have no trouble with either Ruth Bader Ginsburg or Steve Breyer and in the end Clinton decided he didn't want to expend his political capital on a Supreme Court fight and he picked those two first Ginsburg then Breyer and then two the body politic is so different today if you look back at the Hainesworth confirmation hearing I should have checked these numbers but my recollection is that there were guess how many Republican votes against Hainesworth I'm not saying that they were right I'm just saying how many were there you figure five, 10, no, 15, no 19 Republican votes there were as I recall 11 votes against Carswell Bill Coleman who would become the Jerry Ford's secretary of transportation was then lobbying against Carswell and he went to see the then Republican leader Hugh Scott who had already voted against Hainesworth and Scott said to him look I can't vote against Carswell I'm the minority leader I'm the president's leader in the Senate I can't do that so you can't expect me to do that but I'll tell you where the votes are so he helped him defeat Carswell without himself voting against Carswell those numbers just don't exist today there's a much more clearly divided body politic between Democrats and Republicans there are very few genuinely very conservative Democrats and there are very, very few genuinely moderate to liberal Republicans they just those are animals that don't exist currently and so to compare that time with now is in some ways fruitless what will change it you know Alan started out with quoting from the late great Chief Justice Rehnquist's article about presidents considering trying to pack the courts and they should do that if they possibly got the opportunity and the man had the motive the danger of course is that the Senate will do it back to you and in some respects that's what happened to President Reagan and Robert Bork President Reagan had a very announced agenda for what he wanted in a justice at that moment when he named Justice O'Connor he was very clear about the fact on the campaign trail that if he had the chance he would name the first woman to the court and although there were people who tried to talk him out of it when he got that chance he didn't wait he leaped at it and because of that was a different era in American politics there really were very few Republican women or probably women on the bench at all to choose from I'm not denigrating Justice O'Connor I'm only saying that she would be and has been the first person to tell you in her own books that she wasn't the best qualified person in the country I would argue that she was in some ways but she certainly wasn't the most experienced and but he picked her he met her, he liked her he saw what kind of a justice he thought she would be and that was good enough for him and he picked her and then he moved on to his next nominee and that was Bork and by then there was a fairly long check off list of subjects on which President wanted assurances what kind of a nominee he was getting and that was based on his experience in California when he didn't pick people who'd been on the courts to the state Supreme Court and he got burned a couple of times they people turned out not quite like he expected he wanted some predictability and that was the way he thought he could be assured of it but when you say that out loud and you pick somebody who is pretty far to one side you have to figure that if the other side of the political debate controls the Senate they're gonna push back and that's exactly what they did and finally on the subject of why presidents pick nominees and peculiar reasons one of my favorite stories was the choice of Abe Ford is to sit on the Supreme Court at all not his nomination to Chief Justice and the story which maybe my mind is playing tricks on me but I think Abe Ford has told me this story when I went to see him as a rather young reporter and batted my eyelashes at him and the story is that Johnson had to send 50,000 more troops to Vietnam and Fordus was very ambivalent about going on the court I think he really wanted to but it meant a severe loss of income and his wife was not pleased about that and Johnson called him and he said Abe I'm sending 50,000 more troops to Vietnam today and you to the Supreme Court so you'll be the headline so with that I think I'll quit while I'm ahead Thank you Nina as long as we're throwing in stories about government jobs there's the famous Truman story of the fact that he said that every time that he appoints someone to the court or anything else he makes 99 enemies and one in great I want to return to that theme in a second but before we do that, I really didn't do justice we're very fortunate to have in addition to these extraordinary academics and journalists on the panel, someone who's actually helped appoint judges at one time or another probably in his life that's Boyden Gray who was after he himself was clerked for Earl Warren for a long period of time he was White House counsel in the administration of President George H.W. Bush having previously served for the Vice President Bush and so Boyden, the benefit of your experience in this process what have we got right, what have we not got right? Well out of solidarity with Nina, I will not stand up I'll be non-academic about this. I can't resist some anecdotes because people have been telling anecdotes so I have to tell counter anecdotes and I did clerk for Warren and he would tell us so we would have these wonderful Saturday lunches with his law clerks and one of the more amusing stories was about Whitaker who's come up who had nervous breakdowns and he would say that Whitaker would sit there in the conference, which is whether justice has decided what cases to take and how to resolve them he'd sort of say, well if I vote for the petitioner the respondent will be upset but if I vote with the respondent the petitioner will be disappointed then there were rating systems that would go out sort of like a American's conservative this or liberal that and he would be rated 80% conservative, very highest rating, Douglas apparently was much, much lower but he'd go around with this little slip of paper saying to the other justices, do you really think I'm 20% communist? I see Senator Sarbanes here and I'm tempted to tell this maybe totally apocryphal story about how Breyer got appointed. They're in the Oval Office, everyone's waiting out in the Rose Garden for the announcement and Clinton starts talking with Breyer right there and Lloyd Cutler of course, being the White House counsel you know, it would be interesting if we put Sarbanes on the Supreme Court then we could put smoke who's in the mayor Baltimore into the Senate and then a whole bunch of things could flow from this and hatch the vote in the Senate and apparently Cutler said, Mr. President you are going right now to the Oval Office to announce Judge Breyer and grab them by. Then there's the story of Brennan, maybe there was an Irish Catholic he wanted but I'm told the story partly is that Brennell had one of his staff go check him out and he heard him give a speech and it was a law and order speech and it fit with the profile and they were very, very thrilled but what happened was that Brennan actually was substituting for his Chief Justice he was in on the New Jersey Supreme Court and he gave the speech that his Chief Justice would have given, it wasn't his speech. Then there's the story of Goldberg being talked off the court so that Johnson could put Fordus on the court and I'm told that the reason was and Goldberg bought it, can you believe that? That he wanted to get Fordus out of it because Fordus was lobbing and using his name and just creating all kinds of problems for Johnson so he, Johnson kept saying to Fordus I wanna put you on the court and Fordus would keep saying you know it's like St. Augustine, Mr. President you know, oh Lord make me chase but just not now but eventually it worked and of course it did get Fordus in trouble because Fordus eventually had to leave the court and I don't think I'll keep back this I don't think that was the Rubicon really but then there's the story it is true that Holmes didn't follow what Roosevelt wanted him to do but they remained very very good friends and then there's the story of the wedding of Alice Roosevelt Longworth and this was a social organization that had a certain Cambridge University and they were both members of it and which is partly why they were friends but the wedding was a wedding of this particular occasion and Roosevelt told his daughter you only have, you have to marry someone who's in this organization who's also in politics and there's only one person to qualify and that was Nicholas Longworth so it was a wedding and the steward of the club presided over the punch bowl that's what he would do at these weddings and Holmes was at the wedding all the and he sees the steward whom he loved who was black and he goes out, leaves the receiving line of the line waiting and goes and hugs for quite a lengthy period of time and apparently foreign diplomats wise were feigning in the receiving line because they had never seen such a spectacle. I could go on, stories are really great that you pick up when you do this job which I had of helping pick judges. I don't think Fortis was the Rubicon I think it was Bork Alan Brinkley has said, Douglas Brinkley I mean that four out of five made it but one out of five has been kicked out by the Senate over the course of the last 230 years it isn't just recently, what's happened recently is the spectacle of the hearing process and the public campaign and all of that that attended the Bork and also Thomas hearings and then the use of the filibuster which was also very, very controversial and the issues so far as I can see it from my days and then having to testify many, many times not many but several times in Congress about this issue is whether judicial philosophy is the grounds for either picking and or rejecting a Supreme Court nominee and arguments when I was in the White House about advising consent and the Constitution I think says the President shall nominate and with the advice and consent of the Senate appoint advising consent modifying appoint not nominate but that wasn't has been an argument is philosophy grounds for rejecting many, many arguments about that one of the more amusing occasions was when Senator Schumer, I don't think Senator Sorbans was there at this particular occasion but Senator Schumer had a set of hearings about this question of can philosophy be used as the grounds for rejecting a Supreme Court nominee and I was paired with my then partner Lloyd Cutler he to be the liberal and I to be the conservative and what the staff hadn't realized was that there wasn't any difference in view between Lloyd Cutler and me or there wasn't any difference between me and Lloyd Cutler I should say but Lloyd had long track records saying philosophy was not a legitimate criterion for rejection so it was very frustrating for Senator Schumer to hold his hearing with Lloyd and I agreeing about absolutely everything I don't, I wonder how long that staffer lasted I don't know but this has been the I think the single biggest issue and from my vantage point I suppose it's because I'm a conservative or a Republican or maybe even a Libertarian some would say that I think it's been since the fights have been ugliest by the Democratic side in my opinion and I'll get back to Fortis in a second. The question has been is the court there to do legislative type work and it's a complicated argument because it has been pointed out the Republican nominees or at least the conservative ones who've survived that way have tended to throw out more legislation than Democratic nominees so it complicates the argument who are the judicial activists so it's a very very rich argument and people like Mike McConnell can write about this much better than I can and the historians can too but I would say on balance that the issue has been in the modern period is the court to have this sort of quasi-letters that have function and the presidents that I know about and have served have always said the nominees should really not be making, should not be making law and I may be, I know I'm oversimplifying and I'll get pushed back from the panel up here and from people in the audience but that's the way many of us have seen it. On the question of Fortis, this is a personal, it has some sort of personal relevance to me because I was scheduled to clerk for the Chief Justice and those of you who've done this job of clerking know that it's the most exciting life is downhill ever after. Even being White House counsel was downhill and it's a marvelous experience and you don't want to lose it. Well if Fortis had been confirmed I wouldn't have been Warren's law clerk or at least he wouldn't have been Chief Justice and so it was something I was paying a lot of attention to at the time and Fortis, and Fortis also was the classmate of my father's at the Yale Law School and my father was very fond of him and always thought that Fortis was the smartest man he ever knew and because of his friendship with Fortis and Paul Porter, I, my first job as a sort of a summer associate was at Arnold, Fortis, and Porter. So there is sort of this personal ties here but Fortis was on the floor for only about five days and they had a test vote. He couldn't even get a majority let alone above he was about 48 votes is all he could get and within six or seven hours of the vote he had withdrawn his name from consideration. Normally in those days a filibuster would entail a half a dozen cloture votes usually with the pattern then was on the fifth or sixth vote they'd get cloture because the people who were for extended debate believed that they had extended the debate and now the majority was entitled to have an up or down vote but he never even tested the system beyond four or five days. And we know how long these matters hang in the air today. I hope that we'll get back to the point where Lloyd Cutler would say philosophy is not a grounds for rejection. It is a grounds for picking a president is that's what he's authorized by the Constitution to do and we ought to take the Supreme Court a little bit more out of politics than it is and we can't expect that much of it it cannot sustain that level of politicization in my opinion and so I hope the whole thing cools down maybe with the confirmation of Robert Sinolita with that a whole lot of fanfare that we are back on the road again to being a little more sensible about this. Thank you Boyden. Before we turn to your colleagues let's just take stock of where we're at at this point. Thank you for that analysis of the reasons for the way in which people were chosen for the Supreme Court these days. Apparently there one would summarize that as the damnedest collection of reasons because there's been no single reason there. Now we have an argument over the Rubicon. Some of you think the Rubicon was crossed with Fortes. Some of you think it was crossed with Bork. How many of you think it was crossed with Bork? I'm Bork. I don't know. You're Bork. I think it's a combination. I don't think it's that simple, unfortunately. Nothing's that simple. I'm just trying to derive the rationality that we can derive from this process here. By the way, the line in terms of your nomination is getting longer out there. They do want to talk to you. I'm just super. The reason I think the Rubicons with Bork in not Fortes' you know, Fortes went forward, Bork didn't and it's the rejection of a career of a man like Bork and what it did to him personally that started I think kind of the corrosive politics. I'm not saying that people that went after Bork were the reason for it. But I do think it was a sea change because if you look at Clarence Thomas's, Mr. Gray knows well, I mean, what happened with Clarence Thomas and all, it started a kind of a circus trial, I think because the information age was clicking in in the 80s. I mean, it was the beginning really of the ability to find information on people in a way that hadn't been as easy. After all, it becomes the era of DNA suddenly in the 80s. But then why not Haynesworth? I mean, Haynesworth was squarely rejected and he was overwhelmingly rejected and he didn't leave the federal courts and he remained a very respected judge and it didn't sort of, it didn't do the same thing. It wasn't a spectacle. It wasn't a spectacle. It wasn't a spectacle. They're with Vietnam and the anti-war protest in Cambodia and Laos, it kind of stayed, except for real, watchers of the court is just only modestly big in breaking news where Bork kind of, I think, just blasted the country wide open and I'm not sure we've recovered from Bork and Clarence Thomas's experiences. Historians always try to push things farther back than anyone wants to push them back. So maybe I'm wrong about Fortis, but I think that the Fortis Chief Justice nomination was a circus. I also realized that reasonable people can disagree, but you know, both Bruce Murphy and I think that there was a filibuster, but I realize not everyone. But you know, I think one of the things that if you, I hate to admit this, been around as long as I have and covered as many confirmation hearings as I have. First of all, I think Justice O'Connor's hearings were the first where television cameras and microphones were actually allowed in the room. So the very first one I covered was Fortis and people would come out of the hearing room and like, for example, a guy like Tony was very good at sort of summarizing what had just happened so you could get a sound bite out of him and that's why he was highly prized Senate material at that moment. But when you've covered that many, what I saw when I was a very young reporter, very young, incredibly young, was that, and if you read the transcripts of Marshall and the Brennan and the Stewart here at Confirmation Hearings, we forget that there were Dixie Crats then and they were often on these nominations and that's part of the Fortis story is that they weren't particularly interested in confirming Fortis to Chief Justice. So in the 50s and 60s and even the 70s sometimes, they, in the 50s and 60s, they were clearly just sort of beating on people because of their previous decisions because after all, Stewart and Warren were recess appointees. Their previous decisions about race were just beating the holy bechesis out of them but they were only a few of them. So that didn't work. And so the next thing was that the law and order questions, which were legitimate questions after all, became for the Dixie Crats sort of surrogate, a surrogate issue. So you had Strom Thurman saying to, I think it was Abe Fortis, Miranda, Miranda, Miranda, I want that word to ring in your ears. Mallory. Mallory, Mallory, you're right. Mallory, sorry, Jack. That was Jack McKenzie telling me, correcting me, Mallory. So it was very complicated. I think the Fortis vote or non-vote was a filibuster but I also think Boyden is right. Fortis didn't have the kind of support that would have been needed to block a full-fledged filibuster and everybody understood that very quickly. Once Senator Griffin said he was gonna filibuster, the Southerners weren't gonna help and even the good government people sort of smelled a rat. The Phil Hearts of the World smelled a rat. I should add, which I didn't say before, is one of the things that was operative in the Fortis case, when he just didn't get enough votes even to get 50 votes, let alone 60 on that first test vote and he was gone, he pulled out and filibuster is something that lasts more than sort of two or three days, believe me, then and today. But what I didn't say, what was an undercurrent was the scandal, not the fact that he was a crony of Johnson's but that he was a crony of a lot of people who were creating huge conflicts of interest for him and of course I was then luckily clerking at the time that he had to be talked off the court and Mitchell went to Warren and Warren wouldn't tell us what Mitchell told him but he did tell us that Mitchell was quite gracious about it and said, look, what you know about is just the tip of the iceberg. I'm gonna lay out everything and you have a choice of talking him off gently or blowing the cord up as we make this stuff public about what he's been taking under the table. Now the public doesn't know about what he was taking under the table, I never found out about it but this was already an undercurrent when he was rejected and he pulled out in September of 19, whenever it was, 68 or nine. Let's leave Abe Fortis, may he rest in peace to his legacy. Let me ask before turning to audience questions, I have one question for all of you. Has it occurred to anyone other than me here that people, one of the things that happens is that people get nominated because they are supposedly X or Y. They have certain ideologies that get them the nomination. They get confirmed, they go into the court and lo and behold, they're profound disappointments to people who nominate them because they're not playing X or not playing Y and they're not behaving according to the type they were supposed to be behaving with. First of all, why is that the case and secondly, why is that the case? Now there are some exceptions but I think increasingly one could almost talk about the attitude andizing of the court, the individuation of court justices. It's very hard for people to play a role if they feel they don't have to play a role. Institutionally they get caught in a whole other set of imperatives. Does that make any sense to anybody except me? Well there are a lot of famous cases of people who voted in ways that you've heard or some of them. But I think I'd argue that presidents in modern times with a couple of notable exceptions have been pretty successful at predicting at predicting what kind of people they were nominating and usually I think President Reagan was right. If you had somebody who's on the court, on a federal court for a long time you could see what kind of a judge that is and you're not gonna get a surprise and the obvious different person like that is Justice Souter who had been on the federal court for about 14 seconds. But he'd been on a state court for a long time and I've always thought that this was the hubris of the chief of staff, Mr. Sununu, who thought he knew him. I nominated him to the state supreme court. I knew him and he was not as conservative as President Bush I think may have thought when he nominated him but by and large I don't think that Justices Alito and Roberts or Justice Thomas or Justice Scalia have been any surprise at all to the presidents who appointed them and I doubt very much that Justice Ginsburg or Justice Breyer is a surprise to President Clinton. And I even think that probably Anthony Kennedy is not a huge surprise either. And I wonder if Earl Warren was really that big a surprise to Dwight Eisenhower. I mean, Earl Warren was someone with a very progressive record to whom he owed a favor. When he appointed Brennan and he was looking for a Catholic Democrat, he might well have anticipated that that person wouldn't rule his way on every issue. So I think that there's sort of a myth of the surprise. But I think just jump in on Warren had a deal because he threw the delegation to Eisenhower that he would have the first opening. No one expected, Vinton, who was it? Anyway, he dropped dead or something. I think that's a surprise. I mean, he was not the one they expected to retire first. And so Warren goes to Eisenhower and says, okay, Mr. President, he said, well, I didn't mean Chief Justice. And Warren said, you said the first opening. So I think that the surprise factor comes when presidents get the blowback from public opinion that they're not expecting. When I edited Ronald Reagan's White House diaries and President Reagan loved Sandra Day O'Connor, she was from El Paso. She had been at the Lazy Bee cattle ranch, Southern Arizona, Nancy Reagan came from Arizona. It was his idea of a Western conservative with Sandra Day O'Connor. He loved her, Ronald Reagan. And he and his diaries was stunned to find the blowback within the ranks of the conservatives over the abortion issue, which Reagan said, I'm not gonna worry about, essentially these people that are firebombing her are much more extreme than I even thought, meaning his own party people that were complaining about her and he had to stand up. He was very taken aback by that. And I think President Bush, George H.W. Bush, 41, was taken aback with Clarence Thomas by the blowback he got from the civil rights community. I think with that feeling that he would be able to go through that you wouldn't have been all African-Americans trying to go after him and bury him. And so I think the surprise factors come when the presidents make their decision, that's obviously their best judgment or they wanna have picked them, but this sort of cultural wave that hits them. And once it starts, it's like a wildfire and I think we're living in that kind of culture. I just have to respond to this. Two points about Thomas. The president was not surprised. In fact, he pulls Thomas in to his house. I wasn't there and neither was Thornburg or Mrs. Bush. And he says, this is gonna be the roughest ride of your life. I'll stick with you if you stick with me. Are you, will you make that commitment? President Bush knew this was gonna be awful. He didn't know about tapes being coming out of a, vendors, people are gonna start looking at what movies you're watching and that kind of that. I'm telling you, he knew it was gonna be, he didn't know Anita Hill was gonna serve us. If he knew that that was gonna be the case, that he was gonna put him through that, it wouldn't have gone through. I agree with what you're saying. I'm there, I'm there, and I'm telling you. I'm interviewing these people from the administration and that's not what you're gonna do. You better interview me. Well, I'm gonna do it with the president himself. I want the audience to understand that you've just seen historical analysis and action here. Okay, to the audience questions. To what extent do you think the candidate pool for justices has been reduced by a reluctance to be made a spectacle or to be borked? I'm sorry, could you, I couldn't hear you. To what extent do you think the candidate pool for justices has been reduced by a reluctance to be made a spectacle or to be borked? You don't think it's been reduced, anybody? I don't think it's been decreased, not significantly. It might be somewhat decreased to be on a federal court if you know that every little thing you've done and they do this to you these days when you're being proposed for the DC Court of Appeals. You're gonna get fairly closely examined but being on the Supreme Court, what always amazes me for not just this job but other big jobs is that people who do have something to hide still take them. And still get in so much trouble. Thank God, from people like me. Question for Mr. Gray, it says here. Are you arguing that judicial philosophy should not be a requirement for rejection but is a legitimate basis for nomination by the president? Yes. Thank you. And it cuts both ways and we may have a Democrat soon and you can hold me to my words. We'll do that. How would you explain the reason why Republicans in the Senate gave their unanimous support for Ruth Bader Ginsburg and Steve Breyer and the contentious hearings that confronted just John Roberts and Samuel Alito? I told you the reason. Those were by Democratic standards pretty conservative nominees and they were suggested by Senator Hatch who said I can get him through. I think that's absolutely the reason. And I don't think if you actually read the transcripts of particularly the Ginsburg hearing, I don't think you'll find it any more contentious actually. The vote was not, you know, there were many more votes against both Alito and Roberts although Roberts carried half the Democrats. But the hearings were, you know, she was asked many, many questions on a lot of issues and she actually, I was actually quite surprised when I went back and reread them and how many she answered. She didn't answer some, like death penalty questions. She said it was established law but beyond that she would not answer any questions. But a lot of questions that you wouldn't think. She did answer. It was just early in the Clinton administration also. I mean, that was just the new president coming in 93. So I think it may have been a different situation for her report. 94 was when he lost, he was not making sure. Yeah, but it was. 94 was when he lost the Senate, so. I was thinking post-impeachment, like I wonder how, do you think she could have gone through after all that impeachment? Yeah, I think so. I think one of the things, she was on the DC Circuit for 12 years and I know a little, I don't want to bore people with how I know something about this, but I think it's true that, and this is really quite extraordinary if you think about it, if it is true. But I think it's true that the two judges who voted most together when they overlapped on that court were Ruth Bader Ginsburg and Clarence Thomas. So she came off the Court of Appeals with a very different DC Circuit, with a very different docket than the Supreme Court, but she came off that court with a very mainstream, if not conservative, of 12 years. And she also had a voting record on the DC Circuit that was closer to Bork. She voted more often with Bork than any other Democratic nominee. So you're not talking about, if you look at her earlier off the court years, you could portray her as, if you want to, as a somewhat radical, you could try anyway, but you can't with 12 years on the DC Circuit and that's why she was a Republican favorite. Could Myers have been confirmed? Because of the conservative Republican? No, it's worse than that. It doesn't, it doesn't have anything to do with the fact that she was conserved, too conserved as some recent commentary. Well, she was, or they drew because they didn't think she was conservative enough or they drew because she was too conserved. No, she wasn't qualified. I mean, she wasn't up to the level. Unfortunately, she could have been presented as a pal, but unfortunately because of the tradition that Professor Coleman has talked about that you almost need to be an appellate judge and you certainly do need to be an appellate judge to understand the, to go through the grilling that the Judiciary Committee is now used to giving and if you can't do that, if you can't perform at that level of scholarship which she wasn't trained for, nor would pal have been, then I think you can't make it. And that's one of the- I don't agree with you. You don't agree with me, good. I think that, I think that Lewis Powell could have, could have, and could have gotten through that kind of a grilling, but I do not think she could have. And the questionnaire that she filled out for the Judiciary Committee was the most deficient document of its kind that I have ever seen and I've probably seen hundreds of them. I mean, you cannot fill out a questionnaire like that, imagine if you had somebody applying for a job as anything who said, well, I got an honorary degree but I can't remember when. I was on such and such a board, but I don't know what years. I can't answer that question other than with a formulaic one phrase answer even though I know the question was just for me. And I mean, it was an astonishingly deficient document. And the fact that, and I know Ted Olson agrees with me on this, the fact that she was allowed to submit it to the Judiciary Committee suggests to me that there were people within the administration who were sandbagging her because somebody should have said to her, don't do that. That's a rough draft, the roughest of rough drafts. You can't do that. Let me try another question about federal judges. The conversation about surprise speaks to approving only long-term federal judges. Might there be advantages for diversity? Might there be advantages for diversity? There are lots of advantages. Okay, so you're not saying that one should approve only long-term federal judges? No, I don't like that idea. I think it's too limiting to limit the pool to appellate judges. And but I don't think it's, again, Professor Collin, I don't think it's conservatives who've done this. I mean, the criticism, one of the major criticisms of Thomas is he only served 16 months. I think George Mitchell would have been a great Supreme Court justice. Would a Republican-controlled Senate have approved the Bork nomination? I think yes. Yeah, yeah. And it wouldn't have, he wouldn't have, first of all, his hearings wouldn't have been September. They would have been earlier. They wouldn't have gone on for whatever it was, 13 days. Larry Tribe wouldn't have been able to present the cases against him as a sort of a huge, enormous thing. And he would have had a lot more sympathetic treatment from more Republicans on the committee. So the whole sort of atmospherics would have been different. And the Scalia and Rehnquist Chief Justice nomination hearings before the Republicans lost control, though contentious or fine, right? Fine. And the candidates get approved. Yeah. Okay. Do you believe the president has more legitimate discretion to choose than the Senate has to approve or reject? I'll repeat my answer, yes. I think the president's got the constitutional obligation and opportunity to nominate by himself. And then the Senate has to reject or not. But the president has a lot more leeway in this than the Senate. And I think that was designed by the framers. And one of the points is if you don't like what a president's doing, that all gets thrown in to when he's up for reelection. Okay. This is an interesting one. By what process could a sitting Supreme Court judge be removed from the bench? Real health, mental or physical malfeasance? Carrying out, not carrying out his or her duties? Anybody? By what, how could a sitting Supreme Court justice be removed? Someone help me out with the history, who was Sam and Chase, big fight, and it's never been tried again. I think it has to be, you know. With great difficulties. Very difficult. I think it has to be huge, well, the kind of malfeasance that Fortis might have been subjected to, charges of, I mean. High class and misdemeanors. Yeah, I mean very, very high standard. There is nothing in the constitution I don't think that says just because you're sick, you get, you can be removed. I don't know what the statute says about the, you know, whether there's anything to be done for the Supreme Court. You can remove people from the lower courts under the very elaborate procedure. But historically, when people get very infirm, they send an emissary. I think it was, I can't remember who the justice was who was sent to tell homes. I think it was that he was too old that he was getting a little doddy, and he had to leave, time had come, and whoever it was, and I can't remember, said, and Dirtier's day's work have never done. But there have been several who've done that kind of work. Final question. Lessons, lessons from this experience over the last 30 or 40 years. If you were sitting down with a party leader talking about nominations for the Supreme Court, the kind of person should be nominated, the kind should be avoided. What are the lessons of you, all those expert analysts of this process? What have you learned? I think the vetting process has been gotten so tough in politics and the court and that you really have to scrutinize who you're gonna put up for nomination. It's not good enough anymore that it's a political fit, that it kind of, an individual is a friend or is it maybe a bipartisan appointment? All those considerations, I think now it's just vetting, vetting, vetting, that you really don't want to get blindsided by picking somebody and have this media scrutiny process boomerang back on you and you end up being damaged, your administration gets damaged, you have a black guy, you've gotta go back to the well. It seems to be the classic way now to put your whatever parties in power to be kind of taken down a peg. It's not by coincidence, I think Bork at the same time with Iran to Contra. William Lucktenberg wrote the great book in the shadow of FDR by 1980s, started getting in a shadow of Ronald Reagan and there was a blowback attempt to kind of stop all of that and these Supreme Court nominations are the blowback moments in each administration and the A, corollary to that is I think that it matters a lot to legacy. Arguably the current presidents and one has to go to the Bush Library Southern Methodist University, say what are his accomplishments as president? People are gonna talk about Homeland Security not being bombed after 9-11, et cetera, the bullhorn moment but I think probably Supreme Court nominations for the conservatives are the big thing that he accomplished. So your presidential legacies are being really looked at a lot now in this closely polarized country of if you can get your person through and if they are either continuing of a more liberal agenda or are they hard right and the abortion issue, of course, over's weighed as Sandra Day O'Connor knows well as anybody, it's just growing in this sort of litmus test status. Chris O'Connor, lessons learned. I really wish that we didn't expect all of our Supreme Court justices to have spent time on the Federal Circuit for the courts of appeal. And I would say in response to that it's not the conservatives, as I said before, who've gone this trend, I think it's both parties will do this because it is safer. It's easier. And you've had the vetting, the process goes through at least once before, sometimes twice, and you are gonna feel safer notwithstanding the fact that both Bork and Thomas had been appellate judges but you're gonna feel safer and the pressure pushes you in that direction. Nina? Well, I'm not a politician. So I'm not sure, but I think in some respects if you had somebody who had been thoroughly vetted who didn't have a judicial record, you might be safer too, but it takes more work and it is a little more of a high wire act. And the last analysis, I still think if you really consult the other party at all in a serious way, you may not wish to. I mean, George W. Bush wanted a kind of person on the Supreme Court and got more or less what he wanted, I think, in Chief Justice Roberts and Justice Alito, that the Democrats were not gonna basically agree to. So that's off the table. But if you aren't as committed to one side or the other, if you have a less dedicated, perhaps is the right word, adjective view of it, then you have a little wiggle room and you can give a little and you won't have, I think your chances of not having that kind of a spectacle are better. But that's the only thing I can come up with. That's enough. Thank you very much. Thank you all for your patience. Thank you.