The FRONTLINE Interviews
Darlene Superville
White House Correspondent, The Associated Press
Darlene Superville is a White House correspondent for the Associated Press. She has covered politics for the AP for more than a decade.
This interview was conducted by FRONTLINE’s Jim Gilmore on November 19, 2020. It has been edited for clarity and length.
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The Legacy of the Bork Hearings
What did the Judge Bork hearings come to symbolize in Washington, especially with the Republicans?
Republicans to this day, I think, remain extremely angry over the Bork hearings and the way Democrats treated Robert Bork during his Senate confirmation hearings.And that anger carries over to today, and we saw a lot of that two years ago, after President Donald Trump nominated Brett Kavanaugh to a seat on the Supreme Court.Those hearings broke down into just deep partisan divisions.You saw that chasm between the Republicans and Democrats over the way he was treated, and that's something President Donald Trump himself even has been talking about, or has talked about, or did talk about during the campaign.
What's at the base of their anger towards those Bork hearings?Why does it resonate so much with people like [Mitch] McConnell and other Republicans?
Basically, the fact that Democrats used the power that they had to block Bork from getting a lifetime appointment to the United States Supreme Court.And that's something that McConnell, as a young senator back then, you could say that he basically internalized that and carried that through to this very day.
Obama's nomination of Judge Garland.Why did he even do it, despite the fact that McConnell had already made it very clear that he was not going to allow hearings to go forth?
I think President Barack Obama's thinking at the time was that by nominating Merrick Garland and putting forward a candidate that he thought was qualified and deserving of a seat on the Supreme Court, a lifetime position on the Supreme Court, that seeing this gentleman, had he gone up to the Hill and met with lawmakers, senators, during the courtesy calls, that he might have been able to persuade some of them to lean on Senator McConnell to allow the confirmation hearings to go forward.But of course that didn't happen, and Merrick Garland never got that seat.
Why was he mistaken?Why was McConnell so steadfast in his decision not to allow it to happen?
Because he was in charge of the Senate, and one of the goals that Republicans have had for a long, long time is to have a conservative majority on the Supreme Court.President Donald Trump was running for president at the time, and McConnell saw an opening there.Obviously, if President Trump won, and he held the seat open, then President Trump would be the one who would be appointing a justice to the Supreme Court.Trump campaigned with a list of names of justices that he promised to pick from, to choose from if he won, and all of that, all the stars seemed to align perfectly for McConnell back in 2016.
The Kavanaugh Hearings
So let's jump up to Judge Kavanaugh's hearings.How did the White House view the [Christine] Blasey Ford testimony?… What was the general feeling at the White House?
At the time, the feeling was that she was a credible witness, that she was someone who should be believed.I believe the president said that.The first lady said that on a trip to Africa, where she was questioned about that.And so that was the feeling.But obviously, you know, they still wanted Kavanaugh to get the seat, and he ultimately did.
What did it set in motion, as far as we know?
Blasey Ford?
Yeah, after the testimony, before Kavanaugh came back and testified.Do we know whether anything specifically was put into motion because of the fact that her testimony was so strong?
That's a good question.I'm not sure.But the treatment of Kavanaugh is something also that lingers to this day.You hear the president talk about it occasionally, just how awful and terrible he was treated and how no person should be treated like that ever again.So it resonates for Republicans, the way the treatment of Robert Bork did.And you saw that again with—a little bit with Amy Coney Barrett's nomination hearings.
How big a challenge for McConnell was it to continue to push it through after the allegations became public?
I think it was a big challenge, because remember, Christine Blasey Ford came across as very credible, and lots of people believed her story.And at that point, the Republicans and the White House, they had to shift a little bit and figure out how to counter that without seeming to come out and attack her or to try to tear down her credibility.And that's when you saw Brett Kavanaugh come back to the hearings, and he delivered this highly partisan statement where he criticized the process; he raised the name of Bill and Hillary Clinton, "payback for the Clintons," and called it a smear campaign and just a partisan, political-motivated attack.So that's what you saw out of that.
The Death of Ruth Bader Ginsburg
Talk a little bit about when the information came out that Ruth Bader Ginsburg had died.How big a moment was that in Washington?How did people view it?How much did it resonate on both the Republican and specifically the Democratic side?
It was a huge moment.I don't think anyone in Washington on Sept. 18, six, seven weeks before the election, expected Justice Ginsburg to pass away.She had survived a couple of rounds of cancer, broken ribs, other ailments, and had come this far.No one expected it.It was a shock to everybody in Washington that night.And that night the president was off at a campaign rally.… He went on and did his rally, spoke for an hour, maybe an hour and a half, and never said a word about her.It was after the rally was done and he got back to the airplane to head back to Washington that reporters—or he was informed, at that point, that she had passed away.And of course, that set the wheels in motion for Judge Amy Coney Barrett's nomination.
Why did McConnell decide to move forward and say what he said, which was basically that they were going to fill the seat before the election?What [did it mean] for him to fill this particular seat?
What it meant for Senator McConnell was to cement a conservative majority on the U.S. Supreme Court, which is something Republicans in this town have wanted for decades, basically.He was at the controls of the levers of power at the time.He controlled the Senate; the Republicans had the majority in the Senate.Republicans also had the White House.And by his calculation, there was no reason not to go forward with it.It was unprecedented, in that she was nominated so close to a presidential election.No nominee for the court had been named that close to an election.And his calculation also was that, different from Merrick Garland, where at the time the Senate and the White House were controlled by the opposing parties, in this case, in 2020, the Republicans controlled it all.And that was the justification that he gave and other members, other Republican members of the Senate, gave for moving forward with the nomination.
McConnell and the Courts
The history of McConnell is very long, when it comes to how important he felt the courts were; he's been very vocal about that.What did it mean to his legacy that he was able to fill this seat? ...
It's huge for his legacy.It's something that he's dreamed about for a long time, just reshaping not just the U.S. Supreme Court, but the entire federal judiciary.And if you've watched him over the past couple of years, basically since President Trump has taken office, one of the things that he's done in the Senate, consistently, is move forward on President Trump's nominations, judicial nominations for the lower federal courts, the appellate courts and also the U.S. Supreme Court.And these are lifetime appointments, and so many of these conservative justices and judges will be there for decades to come, long after McConnell and President Trump are no longer on the scene.
The Nomination of Amy Coney Barrett
Why Amy Coney Barrett?Why did McConnell push for her specifically?Why her nomination?What about her was important to McConnell and to Trump?
She had been a runner-up two years ago—considered a runner-up two years ago, when President Trump ultimately settled on Brett Kavanaugh for the opening that was created when Justice [Anthony] Kennedy stepped down.So that was one thing that was working in her favor.She was already on the short list, so to speak.President Trump himself had said, at one point, that it was important to maybe choose a woman this time.He had already put two men onto the Supreme Court, and Amy Coney Barrett would be taking the seat of a justice who was a woman.So that was something else that worked in Amy Coney Barrett's favor.… And she had been vetted already for the seat that she had on the appeals court.She had gone through the FBI background check; the Senate Judiciary Committee had looked into her background and her writings and her writings as a professor and also from her time on the bench.So I would use the phrase, she seemed to be the total package at this time.And given the short time frame in which they were working under, she checked all the boxes, so to speak.
And part of that package was her views on some very important subjects to conservatives.How did her background and what she has stated in the past come into play, as far as what McConnell and Trump thought they were basically getting with this total package?
Yeah, there are some lawmakers who believe that she could provide a vote, the vote that would be needed to overturn Roe v. Wade, which is abortion rights in the United States, an issue, a very important issue—a longstanding, very important issue for Republicans.She'd also written seemingly in opposition to the Affordable Care Act, which is another law and an Obama-era law that Republicans have sought to undo but have not been able to fully undo.So those are at least two of the issues that were important, also, in her selection to Republicans.
The hearings begin.Talk a little bit about how unusual they were.It starts with Senator [Lindsey] Graham basically saying that they're there to confirm this judge, that he knows that the Democrats will vote against and the Republicans will all vote for.How unusual was that and what it says about the advice and consent aspect of what the judiciary and the Senate is supposed to be doing? ...
Yeah, that was an unusual way to open a hearing.But I think it's also just a sign of the times that we're in in Washington; everything is just so bitterly divided along these partisan lines.And Democrats were not going to vote for her at all; they made that clear.And if she was going to be confirmed, it was pretty much going to be with mostly Republican—Republican votes.And it's a huge change from decades ago, when there were Supreme Court justice nominees who'd been confirmed on huge bipartisan margins.Sandra Day O'Connor, I believe, was something like 100 to 0.Justice Ginsburg was in the 90s, the Senate vote on her confirmation.And now we've gotten down to a point where it's just 52, 51.Basically, the partisan majority that's controlling the Senate is the one that's pushing their nominees through.
The swearing-in ceremony, again somewhat different than what we normally see.Justice [Clarence] Thomas is the one that swears her in.Talk a little bit about that evening and how you viewed it and what stands out for you.
That was an interesting evening.Of course, you don't really see a Supreme Court justice being sworn in outdoors, but again, we're living in this age of the coronavirus pandemic, and you saw that with the hearings themselves; there were some senators that participated by video conference or Zoom or some technology.Not all the senators were in the room to question Judge Barrett during her hearings.And her swearing-in ceremony happened rapid-fire, within a couple of hours after she was confirmed by the Senate.Everyone rushed over to the White House for the ceremony the president held on the South Lawn, which was in contrast to the ceremony that was held when he introduced her as his nominee.That ceremony was in the Rose Garden in late September.Tons of people were packed in there, and a week later—a week later or so, the president came down with coronavirus.The first lady had become infected.Other people who attended that ceremony had become infected also.So what was unusual, too, about her swearing-in ceremony was the fact that it was outside, done so quickly.She asked for Justice Thomas to be the one to swear her in, because their ideology and philosophy and that kind of thing.
… McConnell is one of the only people who was so involved in making this happen, but he's not even there.But the importance to him that he had reached this point, probably, as he was watching the actual swearing-in? …
For Senator McConnell, this would be the achievement of his life's goal.With Justice Barrett on the court now, you have a solid 6-3 conservative split on the court.That's something that he's wanted for decades, and he was in a position to help make it happen.If he could retire today—he's not; he was just reelected to another six-year term—but if he could retire today, he would probably be very satisfied with that.
And one last thing about all this is, again, the unusual nature of the fact that all of this moved forward in the very fast track that it did.One more time, put that into perspective for us.
It moved really quickly.Within a matter of weeks, we went from seeing the president nominate someone to serving on the Supreme Court to actually having this person take her seat on the Supreme Court, so from late September to, I believe the vote was the end of October—literally, like a month.And I think somewhere—the average is somewhere in the 40-day-or-so range.Go back to 2016, when President Obama nominated Merrick Garland.He took about a month, I think it was, before he actually made the nomination.So there were several weeks when he was doing his due diligence, researching, meeting with candidates, interviewing them before settling on Judge Garland.In this case, Justice Ginsburg died, and a week later President Trump was announcing Judge Amy Coney Barrett as his nominee.So everything moved really rapid-fire fast.And of course, the goal was to have her take her seat before the Nov. 3 election.And you heard the president talk a number of times about—after the election, actually, he was going to go to the Supreme Court, because he didn't—he wasn't yet ready to accept the election results.And I think when he came out the night of the election, or the morning, the wee hours of the morning after, and made his statement, he said, "We're going to go to the Supreme Court.” So he wanted Judge Barrett in place, believing that if the election somehow ended up in the hands of the Supreme Court, he would have the votes that he believes he needs to win, to win the election, to have the court rule in his favor.So the election was also a big driver of moving really fast, in terms of getting Amy Coney Barrett on the court as quickly as they did.
McConnell’s Legacy
So McConnell is viewed as a long-term player.How does that affect his view on the court?Is he different, in the fact that—the way he views history, and what the Congress can do, and what his role is? …
One thing, I think, with Senator McConnell and other Republicans who share his views on the court, is that there's been this feeling for a long time that Democrats have been able to get a lot of what they want, in terms of legislation and policy through the courts.And that's why you hear a lot of talk, particularly from Republicans, about wanting judges who do not legislate from the bench.And so the Republican counterview to that is to put conservative-minded justices on the court.You hear a lot of talk about not wanting judges who legislate from the bench, people who will interpret the Constitution as written.And you heard some of that from Judge Amy Coney Barrett during her hearings recently, that she will interpret the law as written; she doesn't come to it with any agenda, that kind of thing.And so that's where—that's where McConnell comes from on this issue.
The Court and a Biden Administration
… And now you have Joe Biden coming in to become the next president, somebody who certainly is a veteran of judicial wars.But what position does it put Joe Biden in at this point, coming in with a very conservative court, something that he tried to prevent back during the Bork days? ...
It will be interesting to watch the interplay, I think, between Joe Biden and Senator McConnell, President-elect Joe Biden and Senator McConnell.They, of course, worked together many years in the Senate.Joe Biden was in the Senate for six terms; a lot of that overlapped with Senator McConnell.The dynamics now will be different, with McConnell in charge of the Senate and Joe Biden having to maneuver around Senator McConnell, perhaps persuade him, maybe go around him to persuade other Republicans to get parts of his agenda through.The margins in the Senate are going to remain very slim, and there's not going to be a lot of room to work with there.So it will be interesting to watch the interplay between the two of them.
And as for the courts, I don't have a sense of how many openings on the courts there will be for Joe Biden to fill, given the huge number of justices that President Trump and McConnell have already put onto the federal courts, appellate courts, lower courts. …
And the nuts and bolts of it, the fact that he's walking in and it's a 6-3 court now, a very conservative court, how will that affect what he can or cannot do?How big an obstacle, to some extent, can this new court be for Joe Biden?
I think it depends on, obviously, what cases the court will take up.They just heard, for example, arguments recently in another attempt by Republicans and some Republican governors to overturn the Affordable Care Act.I would expect that ruling to come down next year, probably be one of the final rulings of the term to come out.Usually the big ones come out last.So depending on which way they rule, either the Affordable Care Act stays in place and then Joe Biden can go on and build on it, as he promised to do during the campaign, or the justices will agree to strike down part of the law, and Joe Biden will have to figure out how to start from scratch, in terms of providing health care coverage.
I think the bigger obstacle for Joe Biden is the Senate, not that much the court, because a lot of things will have to go through Congress first before they get to the court and be ruled on by the justices in one way or another.
… McConnell made the statement about a month ago, when he was talking about the fact that legislators understand that, to some extent, what they do is ephemeral, that things can change quickly.As he was talking to his Republicans on the floor, that they have to look at the fact that what they've been able to accomplish in the courts, specifically in the Supreme Court, as being something very, very special, because these changes will last for generations and generations. …
That's absolutely right.It's something that McConnell has longed for, dreamed about, worked for during his entire career in the Senate.And as many of these judges and justices get on the court, these are lifetime appointments.And President Trump and Senator McConnell also specifically made a point of choosing judges, nominating judges that were younger, in their 40s, maybe their 50s.And when you get a lifetime appointment in your 40s, you're potentially serving on the court for 40, maybe 50 years, if you're in good health.And a lot of these judges and their rulings and their philosophies will outlive President Trump and will outlive Senator McConnell, and that will be quite a legacy for both.
Anything we missed, any other thoughts you had coming into the interview that you wanted to make?
The only other thing I think I would talk about is just what we know about President-elect Biden, and what he said about the Supreme Court, and his promise to nominate a Black woman, if he were to be fortunate enough to be presented with an opening on the court and needing to fill it with a nominee.He was pressured a lot during the campaign by President Trump to produce a list of candidates that he would choose from to nominate for a court opening, just the way President—like President Trump did back in 2016, and Biden resisted doing that.So we don't really have any idea who he would—who he has in mind or would have in mind for that kind of position, but just that he's talked about putting the first Black woman on the U.S. Supreme Court.And given the times that we're in, and a lot of the unrest and the protests about racial inequality and racial justice that we saw in this country over the summer, I think that was an important promise on Joe Biden's part.
My last question: The importance of this debate, how it's become so partisan, how the Supreme Court is now, in some ways, viewed as more partisan than it used to be, why is this issue so important? ...
It's such an important issue because, as we've discussed, the lifetime appointments—these judges will serve for decades to come, and it's in many ways a symbol of ultimate power and authority to be able to give someone a job, and they'll be there for 30, 40, 50 years. And, you know, you've remade the judiciary, and that's something people can point to as part of your legacy.All roads lead back to power in Washington.And in some ways, the courts are the ultimate power center.
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