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Tom Daschle

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Tom Daschle

Former U.S. Senator (D-SD)

Tom Daschle is a former Democratic United States representative and a senator from South Dakota. He served as majority leader of the Senate.

This interview was conducted by FRONTLINE’s Michael Kirk on January 25, 2019. It has been edited for clarity and length.

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Supreme Revenge

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Advice and Consent Before Robert Bork

Let's start with advice and consent as a concept.When you came into the Senate, what was the way to think about judicial nominations in those days?

I thought the—I think the general perception has always been that Congress is an equal player when it comes to important nominations, that the president has every right to nominate, but we have every right to confirm.And that both the responsibilities are equal in their value and in their overall impact on the process of the nominating of public officials, especially lifetime public officials.

So the first time there were bumps, if you say the contentiousness didn't really happen that regularly until [Harrold] Carswell and [Clement] Haynsworth in the Nixon administration, that predates you, I think.

You could argue maybe Abe Fortas in the '60s.A little bit different, different circumstance, but you're right.Carswell and Haynsworth, I think, were the pivotal moments when things began to start changing.

How would you describe the change, at least in those early days?

I think in the early days, it was—I actually think media has had a lot to do with it, frankly, first television and now social media.I think the opportunity to magnify everything through the media has really exacerbated the process.In part it was the advent of C-SPAN and the opportunity for people to play to the cameras for a much more profound way with regard to the drama that unfolds when you ask the big question or you pin somebody down on a witness stand.All of that drama and that theatric value played itself out in the media right about the same time.I won't say there's a correlation necessarily, but it's more than just coincidence that that's when it happened.

The Nomination of Robert Bork

It is really true that if you think about the big television events that are like national shared civics lessons, you've got Army-McCarthy, you've got Watergate, and certainly when you get to [Robert] Bork—I remember Bork very clearly.It was my first moment of really understanding, “Oh, I see; politics plays some role in all of this.”So let's talk about Bork, shall we?

I might just add a point in that regard, that I was in the Congress at the time, but I was glued to the television like everybody else.I wasn't on the appropriate committees, and so I have to admit I was as smitten by all the television theatrical drama that everybody else was.So it wasn't just somebody out in South Dakota, my home state, or someplace else.Everybody was affected by it.

Why?

I think in part because there was so much at stake, first of all; in part, because it made such a great story.It was a compelling story.It was a controversy.And it was, to a certain extent, almost like a sporting event.Somebody was going to win, and somebody was going to lose.How was this going to play out?And that, I think, had a gripping effect on an audience.

So when President Reagan, who's gotten Sandra Day O'Connor rather easily onto the court and Bill Rehnquist onto the court, suddenly he, in the nearly last year of his presidency, names a professor who's been on the launchpad court, the D.C. Circuit, names him, everybody says, “He's a professor; he's a whatever,” but within 45 minutes Ted Kennedy (D-Mass.) has taken the floor and excoriated him, sounded the rallying cry for the country.Tell me what you think was behind Kennedy's statements.

Partly it was ideology, and a lot of it was personality and history.You know, the history goes all the way back to Nixon, of course, when Bork was the one who fired the independent prosecutor and the investigator, and I think that had a lot to do with sort of the creation initially of his persona.But then he was not hesitant, not reluctant to weigh in on many of the very controversial issues around the judiciary and around important issues of the day.So he generated a great deal of controversy and really became, to a certain extent, a lightning rod for much of the controversy around many of the issues that we were confronting at the time.So he wasn't the same as a Sandra Day O'Connor or a—he didn't have the same persona.He had a very electric capacity to generate friction, tension, confrontation, and he seemed to enjoy it.I think that's where it started.

And it is absolutely a made-for-TV moment.

No question.

Here's a guy with a Van Dyke beard and, as you say, a bigger-than-life, almost a philosopher-king approach to the world.And you've got Sen. Kennedy sitting there, and you've got that fight.And you've got others on the Republican side—[Orrin] Hatch (R-Utah), certainly [Alan] Simpson (R-Wyo.)—ready to go to fight it out, I guess.

No, that's right.I think there was, almost from the very beginning, there was almost an expectation that this was not going to be easy.I think even the Reagan administration, as I understand it, knew that this was going to be tough.But he was under great pressure to nominate somebody that appealed to his base.He was having some difficulty in his own right, and he was in the latter years of his presidency.And I think he felt the need to placate the base.There had been earlier calls for his nomination, so, as a result, knowing this was not going to be easy, they rolled the dice, and we saw what happened.

There was a lot of talk about the Democrats being ready, and some of the Democrats we've talked to, senators who were there at the time, said, “Yes, we built a war room; we had put a war chest together.”And Norman Lear was there to help.… Gregory Peck [was] doing ads about it.It really was akin in some ways to a campaign event, a political event, as much as it was a vetting of a judge.

There's no doubt that this was the equivalent, really, of an all-out political battle from the very beginning, a battle that had enormous consequences.People understood that if he were on the court, there was going to be enormous repercussions with regard to how the court would be perceived from then on.He was a warrior.He was a right-wing idealistic warrior, and he was willing to combat anybody who confronted him.So there were clearly lines drawn, and the fight was one that was waged with a ferocity that I hadn't seen around the Supreme Court in all the time that I'd been there.

… Is it what it seems like to us?Is it a step, like a giant step in another direction from the way things had gone before, even with Haynsworth and Carswell?

Obviously none of us can go back through history, and I'm sure there were other nominations of this import that were equally as contentious and difficult.But again, as I say, with the advent of the media in particular, it really created the perfect storm for a confrontation of the magnitude and the ramifications that it had.We live today with the whole notion that Bork launched a new era with regard to Supreme Court confirmations, and I think that perception is accurate.

The verb that gets generated—

You got borked, right.

“Borked” is a remarkable legacy for somebody like Robert Bork to leave behind.

No question.

I gave you a little preview of what Sen. [Mitch] McConnell (R-Ky.) said at the end of the vote, in some ways an open threat to the Democratic Party that something had really changed, and if we're going to war, well, we're going to create war rooms ourselves.We're going to get an infusion of money.We're going to do ads, when the next big moment comes.Did it feel that way to you, that something had changed internally between the two parties and between the two groups that was a little tougher, a little different?

I think most of us felt that there was the potential, but I would hasten to remind our audience that it wasn't that long after the Bork experience that Ruth Bader Ginsburg won by I think it was 97 votes, and she was clearly equally as defined with regard to ideology.Hers, of course, was on the progressive side.But she won with overwhelming support.I think it was Ruth Bader Ginsburg’s demeanor and reputation and extraordinary stature that transcended politics and ideology, unlike Bork.Bork, again, I think, was such a lightning rod for all of the controversy and the ideological battles, and almost embraced it.

And so you take those two case studies as sort of the ends of the spectrum, both in some cases equally defined philosophically and ideologically, but both entirely experiencing a different result.

One of the things that happens as a result of what happens with Bork—and we'll lead ourselves into Judge [Clarence] Thomas now—is the energy and the anger from what happened to Bork being somehow gathered up by this young campus group called the Federalist Society which began to draw its energy, enthusiasm and anger together.And in the five years between Bork and H.W. Bush's decision after [David] Souter to put Thurgood Marshall's seat in the hands of an African American conservative man, that one of the reasons he chose Thomas, as we hear it, was the energy, enthusiasm and threats from the growing power of the Federalist Society.Do you have an observation about that?

I think that's true.I don't think the Federalist Society was viewed at that time through the same lens that it is now.It had far less stature.It was just in its embryonic stages.I think the single biggest reason Clarence Thomas was nominated was the respect everyone had for Jack Danforth (R-Mo.), and Danforth was his mentor, was his sponsor, was his advocate, and did an amazing job as a relentless supporter to ensure his nomination.He knew how to work the ranks within the administration and the committee, and he did so effectively.

They built with Kenny Duberstein and others a war room over at the Eisenhower Building.They had 11 murder boards with Clarence Thomas.They were trying to relearn the lessons or refight the war that the Democrats did with Bork, I think.Are there any other lessons that you know of that might have been carried across by the Republicans in the bringing Bork forward to that hearing room?

Well, I think the other thing in Clarence Thomas' case was the fact that he was an African American, and I think that was viewed as a plus all the way around.We had seen a huge loss with the loss of Justice Marshall, and so I think there was almost an expectation that we had to find somebody that could represent and be reflective of the African American community at large, and I think that was initially viewed as a real asset and another reason for his nomination.

The Nomination of Clarence Thomas

One of the things that he's instructed to do, Simpson was given the charge of working with Danforth to bring him forward, was: Don't do a Bork.Don't talk too much; don't go into too much depth; don't go into the details of your decisions.Even if you talked about <i>Roe v. Wade</i> casually, don't talk about <i>Roe v. Wade</i> right now.Just tell the story of your youth and Pin Point, Ga., and get it over with.

I think that was exactly the strategy, and for a while it worked.I mean, I think had it not been for the Anita Hill experience in particular, I don't think his controversies would have been nearly as profound as the Bork experience.But obviously, as it unfolded, things changed quickly, and his candidacy became much more in doubt.

When you tell yourself the story of how Anita Hill ends up, independent of who she is personally, how those arguments, that moment emerges, how did it happen when you go back and tell yourself the story of Anita Hill?

Again, because I wasn't immediately engaged, I really don't know how it happened.I will say I think she was a very sympathetic figure, a very articulate spokesperson.She really captured, I think, the imagination and the trust of a lot of people, including me.I mean, I was, again, compelled to watch that television testimony, and I believed her.She was too credible and she was too forthcoming, it seemed to me, to make it up, and so a lot of us believed her and believed strongly that she was done a real injustice.

… And from Thomas's perspective, he comes to the table.He's been helped by Simpson and others to think through how angry he is.He says the "high-tech lynching" statement and in some ways declares a different kind of change in the air.What did you think when you heard the "high-tech lynching" statement?

Well, for him, I thought it was an enormously effective tactical maneuver.I think he characterized it in such a way that almost immediately put all of his accusers on the defensive.Who could embrace a lynching of any kind, whether it's virtual or real?And so I think he was able to characterize it.And of course, he had a lot of people to amplify that characterization, so it became an enormously effective defense, and it worked.That alone, probably more than any other single factor, allowed him to change the dynamics adequately enough to be confirmed.

What does that tell us?

What that told me was that there are ways with which to change the, change the dynamics of a time like that, of a set of confrontational circumstances, where the right choice of words and the right choice of emotional emphasis has a powerful impact on those on the other side and, really, on all those viewing the circumstances as they were unfolding.

Mitch McConnell and Control of the Courts

So now we've done Bork, and now we've done Thomas.And we have an understanding that we're on a continuum here, or a people mover of policy and politics.Let's jump ahead to the beginning of the Barack Obama administration.Let's focus on the minority leader of the Republican Party, the Republican Senate, Mitch McConnell.His efforts across those years—you've been in the job—his efforts across the years to slow-walk judicial appointments, appeals courts, district courts, eventually we'll get to Merrick Garland at the end of this road.… How would you assess what Mitch McConnell did during those eight years?

Well, I think first of all one has to put it in perspective.And it seems to me that the more dysfunctional Congress becomes, the more important the courts are; the more important decisions made by the courts become even more critical to the overall capacity for governance within our democratic republic.And so court positions, judicial positions at all levels become even bigger prizes, more important prizes, more important criteria by which one judges who will be in control of our government over the course of the next 10, 20, 30 years.And given the fact that most of these judicial appointments are lifetime, it is all the more a critical opportunity for either party to fight and fight hard for whatever it is, whether it's the confirmation or the opposition to that confirmation in a judicial battle.

And I believe Mitch McConnell understood that from the very beginning, that in the minority in particular, to preclude, to stop, to thwart any effort by the Obama administration to win that prize became one of his most important goals, and he did it effectively.

What was he good at?

Well, I am one who—and I've said this to my successors in leadership, that I have always felt that losing the 60-vote threshold was really one of the most consequential developments in the process of confirmation.And I think that because at that time, during those early years when the Obama administration was nominating, you still needed 60, Mitch McConnell was extremely effective in unifying his caucus in opposition with the recognition that this was, given the fact that there was so little legislation passing, this was perhaps one of the most important things they could do to substantiate their presence and their reason for being in the Senate at all.

How does he operate?How does he hold that caucus?You've watched it happen.What does he do?He's not a dynamic— he's not pulling the public into the process.What's he doing?

Well, I think when you're in the minority, I will say it's much easier.I had much more fun in some respects as a minority leader than I did majority leader, because you can—especially with social media and with the hyperbolic rhetoric that just naturally occurs today in the legislative and the political process, it's so easy to energize your base and to energize your caucus.Caucus meetings oftentimes became the equivalent of a sporting event.You gave a stirring speech about what they're trying to do, and they all charged out and went to fight, recognizing it was either us or them.

And so you could articulate that fairly effectively within a caucus, and that's what Mitch McConnell did well.He energized his caucus in large measure by talking about what that liberal agenda could mean, for not decades, but maybe generations if all these justices were confirmed.

He used to say with some regularity—he probably still does—“Don't talk to me about policy.I don't care about policy; I only care about politics.”It made it a little easier, I suppose, to do some of the things that he did.

When you can put this in a political context, you can make it pretty easily defensible from the point of view of articulating why we're doing this to your caucus members.I mean, people understand politics a lot easier than they understand policy.Policy has so many dimensions, so many subsets, so many different nuances.Politics doesn't.It's either win or lose in politics.So if you can migrate from policy to politics, you have increased your chances of maintaining the kind of unity and the kind of cohesion and the kind of enthusiasm and energy and emotion that a leader tries to get out of his caucus every time you go into a battle.

…. I think McConnell had his eye on a much longer game, which was: “Let's fill—let's get the courts.Six thousand judgments are made out there by appeals court judges and 82 a year by the Supreme Court.If I can get the courts, I don't need a big demographic group; I can do it that way.”Am I right in—?

Absolutely, absolutely.I think the courts have become so much larger a motivation for the kind of fights that we see in the Senate almost on a daily basis now.The courts are a prize that both sides are increasingly willing to fight hard for and against, in large measure because they realize courts are consequential, and the Supreme Court in particular has as much, if not more power oftentimes than the Senate does in deciding the fate of our country and the policies around it.

The Death of Justice Scalia and Mitch McConnell’s Gamble

… So this brings us to the death of [Antonin] Scalia, and within an hour or so a statement from the leader that said, “We're not going to be—in this last year of his presidency, we're not going to be entertaining, and he might as well not bring up a nominee.”

Well, it was, to me, one of the most troubling of all the pronouncements I've heard in my entire professional life with regard to Congress and the way we function as a democratic republic.I mean, this had profound consequences.We set precedents.This isn't just a Merrick Garland issue.This is a precedent that could actually last in perpetuity.

And so the whole notion that we would accept a vacancy for the better part of a year in the name of a political or an ideological debate to me is just so foreign.But it was immediately accepted, and it was viewed largely as an enormous political success, not only for Mitch McConnell and the Republican caucus, but for Republican administrations from here on out.

The stakes at that moment?What was at play in filling Scalia's seat?

Well, Scalia—this goes back to an earlier part of our conversation.Scalia was viewed as sort of the foundation of the conservative element within the Supreme Court.He was the godfather.He was somebody of enormous import to the conservative community and to conservatives generally across the country.He was iconic.He was much like a Thurgood Marshall was on the progressive side.And so his vacancy was not just another vacancy.His vacancy demanded, in the view of many conservatives, somebody of equal import, somebody of equal standing, somebody of equal definition with regard to the principles of conservatism.And Merrick Garland, obviously, didn't fit that description.

How did McConnell stop—How does McConnell stop Republicans—Hatch, [Arizona’s Jeff] Flake, [Maine’s Susan] Collins, others—from meeting with and advocating for a justice, especially in those times with the election coming up and Hillary [Clinton] looming?

Obviously I give Sen. McConnell a great deal of credit for his strategy as much as I disagree with it and profoundly express my opposition to it.I would also—I think Mitch McConnell would tell you quite openly that he had enormous support.The base immediately became enthusiastic around this strategy.Fox News almost nightly talked about it and ramped up the support and made it a litmus test and dared anybody to challenge Mitch McConnell's strategy here.So there was an enormous amount of pressure and peer support that I think led everyone to be intimidated, frankly, and unwilling to take on the base, Fox News, Mitch McConnell, and the phalanx of supporters of this strategy almost from the hours after it was announced.

… Where are we at the moment that Mitch McConnell is shaking hands with Brett Kavanaugh and about to put him through the process of confirmation?

Well, I think McConnell knew from the very beginning that his job was not going to be nearly as difficult given the opportunity to confirm somebody now with 51 votes.So it starts with the realization that he's halfway home, having reduced the threshold from 60 to 51.Now it was just a question of maintaining the unity within his own caucus, and making it a political and an ideological fight rather than a policy fight was key to getting that job done.

Why?

Requiring—

Sorry.

—members of Congress especially to hold firm and to recognize that this may be one of the most important votes they cast, ever, was one of his initial goals; making sure they understood the consequences of the Kavanaugh vote on the Supreme Court for not only years, but perhaps a generation.And that consequence, that enormity, was something I think everyone realized, and knew that it was simply a matter of coming up with a strategy that allowed for the unity that came and that we saw in the process over the next several months.

Mitch had spent a lifetime getting to that moment.

No question.He was really adept at that point in speaking the language of political strategy around confirmations.He'd been through it on the opposite side; now he was going through it on the confirmation side.But he was able, I think, having had all this rich experience, to characterize, to frame the issues, to challenge those who might have a different point of view, and ultimately to be successful.

The Nomination of Brett Kavanaugh

Brett Kavanaugh, who's standing in that room, the Yale Federalist Society-bred, George W. Bush in charge of judicial appointments.Tell me who he is.And in some ways, is he different than others?

I think Brett Kavanaugh was different in a couple of respects.First of all, he had far more experience with the process than almost any other predecessor had, both in the executive branch and in the judicial branch. And so he came with a lot of insight as to how one goes through this process successfully.That was number one.

Number two, he had just an enormous network of relationships within the Republican ranks in particular.People knew Brett Kavanaugh.People knew and liked him.So he had something that very few other judges have ever had: that ability to rely on personal experience with members of Congress—and frankly, in some cases, on both sides of the aisle—as well as people within the administration and people in the—you know, the general framework of the universe of people who are going to help create the perception of your nomination.

And so I don't know if there was anybody, in recent times especially, who had the wealth of experience, the network and the standing that Brett Kavanaugh had going into the fight.

So did they both think it was going to be easy?

I think initially they probably did think it was going to be easy.And frankly, for a while it was.There was a lot of visibility around the opposition, but there really wasn't a lot of enthusiasm.I think there was this almost sense of inevitability, all through the summer in particular.They knew they didn't have the votes.There was no Republican who was willing to step forward and express opposition.They knew they only had a limited threshold, so there was almost an expectation that this was going to work.

So then in our scene and in reality, I've watched the footage of Chuck Grassley (R-Iowa) bringing Kavanaugh in on that first day, and the sea parts; the photographers get out of the way, and Kavanaugh sits at the table, and Grassley starts to pound his gavel, and he gets about 13 words out, and—roar—the Democrats come at him.And the Republicans and the Democrats are then just at it, and the crowd as people are getting thrown out.It's in some ways, I keep saying to myself, it's a microcosm of American politics right now.Your thoughts?

Well, I thought the hyperbole was unfortunate.I don't think it was a good experience for anybody watching.It was painful in so many different contexts, painful to watch in terms of the lack of civility, in terms of the, as I say, the hyperbole.I think it was understandable; this was a very emotional moment.I think social media, again—I would add, emphasize that media has so much to do with creating the climate, the atmosphere, the backdrop.And certainly in this case, media played a very, very catalytic role in creating this confrontational atmosphere.

But it was an ugly moment.It was probably a moment that reflected, of course, the views of Americans on all sides.They were—the Senate is no different than the country as a whole, and so I think it reflected accurately the sentiment within the country, but it did so magnified, and that magnification did a disservice to the Senate.

Allegations by Christine Blasey Ford

People tell us that when you're sitting in that chair, by the time you're there, you're 90 percent home as the nominee, and it seemed that he was.…And then Dr. Christine Blasey Ford emerges.As that's unfolding, what are you thinking?

Well, I, again, found myself glued to the television, as millions and millions of Americans were.I listened to her testimony, and I thought it was over.I really thought she gave such a compelling statement that I really didn't see how it was possible to come back and to refute and to, in some way, overcome what seemed to be such compelling information.And so I commented to others that I thought on the basis of her testimony alone that they had to find a way to resolve this that allowed Justice Kavanaugh to save face, and I wasn't sure how they were going to do that.But frankly, I thought it was almost an impossible task.

The leader is really holding on.The way people tell us, he's got to worry that the clock is ticking.He's got the midterm elections coming; he can't give up on this guy.… Can you imagine the leader's position at that moment?

I can.There's no doubt in my mind that he, perhaps more than almost anyone else, knew exactly what set of circumstances they were facing and how best to address it.This was a man who had been through these fights over and over and over again and knew the consequences, the stakes.He knew that he had one shot, and I think he quarterbacked it virtually perfectly from his perspective.

Brett Kavanaugh’s Response

… He had to be the way he was.

Well, he had to, again, given his audience.That's always the thing that one has to remember, is he had that audience of one, so he had to be as Trump-like in his aggressive behavior and in his response to questions.I worry a lot about the precedent that it set and what the perception of the Supreme Court will be for years and years and years to come as a result of how politicized this whole experience has been and how politicized he will be viewed, almost his entire career.I don't know if he'll ever rid himself of the perception that he is a hard-core right-wing Republican person who happens to be a justice of the Supreme Court.That's the perception.Some people see that as an asset.I think most people see it as a real liability.

Let me see what we've missed with Jim.

New Norms in the Nomination Process

Just one or two.Your respect for the Senate—you've written about the fact that during the 18 years that you were there, advice and consent was built in the traditions and laws around or whatever allowed for a system that insulated itself from partisan politics. ….Just if you can, give us an overview of what you see has changed and why that's important.

Well, unfortunately, I think we've seen a real erosion, not only in the institutional rules of the Senate, but the norms that are so important as the character of that body.The Senate continues to evolve, and that's to be expected.But there are norms, there are rules, there are measurement[s] of behavior that I think that we've respected through history.We're losing a lot of that today.And in losing it, we're losing the institutional quality that the Senate has reflected for over 200 years.That's what concerns me.It's the precedents, it's the behavior, it's the character of the Senate itself and how much has changed in my lifetime, and how much more it will change if we keep this up, and what it may mean for how we govern going forward.

And the only other thing—maybe this is connected to what you just said, but we were talking about Bork, and you said the Bork hearings ushered in a new age.Maybe explain a little bit more about what you mean by that…

I think the Bork experience was the beginning of a period where we migrated from viewing nominees for the Supreme Court in primarily, and almost exclusively, a judicial context—that is, qualifications and character—to one where we began viewing these nominees in a political context.Not only character and qualifications, but ideological temperament, political background, expectations for holding the line with regard to Republican or Democratic agendas, that became the litmus test going forward, and that to me changed in profound ways the way we view the Supreme Court today.

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