INTERVIBW NO. 4
This is the fourth interview of the Oral History of former Chief Judge Abner J. Mikva as
part of the Oral History Project of the D.C. Circuit Historical Society. It is being held at bis
home, 442 New Jersey Avenue, S.E., Washington, D.C., on Tuesday, July 16, 1996. The tape
and any transcripts made from the tape are confidential and governed by the wishes of the Judge,
which ultimately will be made in the form of a written donative instrument.
Mr. Pollak: Ab, tell me something about the district from which you were elected, the
constituents there, and what you anticipated or told them you were going to accomplish as you
got elected as a freshman congressperson.
Judge Mikva: Well, the heart of the district, as far as I was concerned, was the University
of Chicago area It was the heart of my base, it had been my base line when I was in the state
legislature, it is where all of my most enthusiastic support came from It came from the law
school and the rest of the university, the student power that helped me win the primary fights
when I had them, and the source of idea people for whatever it was I was doing legislatively in
the state government and later on when I was in Washington. But it was, as far as the population
was concerned, it was probably less than ten percent or fifteen percent of the total population. I
had a large African-American constituency- about twenty-five percent or so. I had a large group
of ethnic communities – I probably had.more . Chicago always brags that it has more people of
Polish descent than Warsaw does, and a good piece of that Polish population was in my district.
I had a large Croatian ethnic group. I had a large Bosnian, probably not Bosnian, large Serbian
ethnic group and then I had a suburban area as well. It was what we call the blue collar suburbs,
they were the railroad towns in the south end of Chicago, but they were suburban. Most of them
were people that had fled the city for all kinds of reasons, and they were a part of my district.
The hot issue of the day, as far as I was concerned, was the Vietnam War. And most people,
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certainly the entire University of Chicago area, and most people under 30 were vehemently
opposed to the war.
Mr. Pollak: Would you say for the record again what period you campaigned in? Was it
the fall of 1968?
Judge Milcva: 1968. I was elected November of ’68 and took office in January of ’69 and
from then until ’72 the war was going on. Indeed it was going on even after I left, and it was an
overwhelming issue for the American people generally, and it was a generational issue. People
30 and under were very much opposed to it. A lot of the older groups, including these ethnic
populations I described, were in support of President Jolmson and President Nixon in support of
the war. It was a tense issue as far as my constituency was concerned. The other hot issue as far
as my district was concerned was civil rights. As I said, I had a large African-American
population, but I had these large ethnic constituencies who were- they weren’t racists in the
traditional Southern sense – but they were very resentful of Blacks moving into their neighborhoods.
They were very uneasy about integrating schools. They were worried that their children
would go to high school and start dating minorities and this would lead to all kinds of problems.
So there was a lot resentment to the civil rights legislation which was being pushed by President
Johnson, and it was a hot issue. I was known as a supporter of Dr. King’s marches in Chicago
and as a supporter of civil rights legislation. When I would march in the Labor Day parade,
which was the big parade on the Southside around the steel mills, people would boo me. Good
loyal democrats would vote for me but they were angry because I was supporting civil rights
legislation, and they would boo and hiss and tell me to go back where I came from It was
painful, particularly because I had represented the Steelworkers Union when I was in private
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practice and I knew a lot of these people. I knew that on the economic issues we agreed and that
I had their support. It was.overridden by the civil rights issues and the Vietnam War. So it was
kind of a painful period.
Mr. Pollak: Where were you on the war as you campaigned in ’68?
Judge Milcva: I campaigned against the war and again the University area supported me
enthusiastically on it and were very instrumental in my winning in the primary in which I did
have a fight. But in the fall, the other parts of the district weighed in, and the older people in the
area were not opposed to the war. Even if they were opposed to it, they didn’t want to take on
President Johnson and President-to-be Nixon. The ’68 convention further heated up the political
dialogue and the political arena. Even though the fall campaign was relatively easy in terms of
my winning it, it was a very painful experience for me.
Mr. Pollak: Who was your Republican opponent?
Judge Milcva: I can’t even remember. The advantage of that district was that even though
they disagreed with my views, many of them would have thought that their right arm would fall
off if they tried to pull a Republican lever and so they voted Democratic. They voted the straight
ticket, but they weren’t happy with their congressional candidate.
Mr. Pollak: Did you say the last time what you spent on your initial congressional
campaign? Do you recall?
Judge Milcva: I don’t recall. By today’s standards, it wasn’t a lot of money; by the money
that I spent later on, it wasn’t a lot of money. I seem to remember that in 1966 in my
unsuccessful primary, I ended up about $20,000 or $30,000 in debt, which was kind of hard to
pay off since I had lost; but I was able to get it paid off. I don’t think the whole campaign cost
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me more than $70,000 or $80,000.
Mr. Pollak: The ’66.campaign?
Judge Milcva: ’66 campaign. In ’68, the primary may have cost near that amount, but I
spent very little money in the general election because it was a solid Democratic district.
Mr. Pollak: Did you support the Presidential candidate in that circumstance?
Judge Mikva: Hubert Humphrey? I did. I made it clear that I disagreed with him on
Vietnam One of the difficulties was that Senator Humphrey disagreed with himself on Vietnam
He really was not comfortable with our being there, but he felt that he owed a loyalty to President
Johnson. He’d been his Vice President, and he couldn’t campaign against the war. I remember
that I and several other democrats went to see him shortly after the convention, encouraging him
to speak out against the war. He told us that whatever his personal views, he felt that he had
gotten the nomination, he had accepted it, with the understanding that he would try to carry out
the policies that Lyndon Johnson stood for. He was stuck and we were stuck and he lost.
Mr. Pollak: Well, you thenjoined the ’90-something Congress.
Judge Mik:va: I think it was the 95th Congress; no it wasn’t. I think it was the 91st
Congress – 91st Congress, yes. The 89th was ’64 and this was the 91st.
Mr. Pollak: Well, say something about that, you got committee assignments. What was
the experience like; what did you do with your family?
Judge Milcva: We moved to Washington. I was elected in November and Zoe and I came
down here after the election and started looking for houses. We would have preferred, I think, to
live in the District of Columbia, but the schools were beginning to turn somewhat grim, and I
couldn’t afford to use the private schools on a congressman’s salary. We looked at Montgomery
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County, which had very attractive housing and a very good school system; but we couldn’t afford
the prices to buy a house out .there. We started looking in Northern Virginia, and we found this
great house in Fairfax County. We had lived in Arlington when I’d been a law clerk, and I
remembered how completely segregated everything about Northern Virginia had been. They had
separate schools and separate shopping areas and everything. I wasn’t about to move my family
into that kind of a segregated area. We went to visit the local schools and this one in the McLean
area where we found a house that we really loved very much at a price we could afford, and I was
delighted to find that there was a black teacher and that she was the counselor for the high
school We spent some time talking to her, and she was very enthusiastic about the Fairfax
County school system and how far it had progressed from the old separate days. So we decided,
well, that solves our problem We bought the house. We were very enthusiastic about it. It was
a great house on 1/3 of an acre of ground with a swimming pool and lots of room and, as I say, at
a price we could afford. I moved into it alone in January or February right after we closed on the
house. The kids were in the middle of the school year and Zoe was teaching then, so they stayed
until May or June, then they moved in. My daughters never did adjust to McLean, Virginia. The
culture shock of moving from the southside of Chicago to McLean was more than they could
handle. Among other things, they complained that the schools really were segregated, and I kept
discussing with my eldest daughter who was then either 16 or 17, saying, “Well, Mary, we saw it,
we talked to the counselor, and she assured us that the classes were integrated.” She said, “Oh
yes, they are integrated, they allocate 1.7 blacks to every class.” She said, “And any day I expect
to see the 7 /1 Oths of a black come walking down the aisle because we only have one in my class.”
It was partly that and partly moving somebody in the junior year of high school which made it
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not a pleasant event. But they survived, and she graduated from Langley High School; and my
youngest survived the couple-three years that she was in grade school in McLean. The biggest
problem was with our middle daughter. She went from a straight A student in Chicago to B’s to
C’s in Fairfax County. Then one day we got a call from the assistant principal saying, “Is Laurie
sick? We haven’t seen her in a week.” Turned out that every day she would get dressed and play
hooky. She was so unhappy with school, unhappy with everything about her, that surrounded
her. We ended up putting her in Georgetown Day School, which saved our sanity and her
academic career. It made me aware that some of my harsh criticism of people who opted for
private schools was unfair. I realized the first need I found for using the private schools, I didn’t
wait to try to struggle through it. I picked up our child and put her in a private school. It took her
some time to get her head on straight. She never did graduate from high school. At the end of
her third year of high school at Langley High School, I lost my seat and we moved back to
Illinois and that would have been her third high school and she said, “Give me a break,” — fourth
high school — she said “Give me a break.” I said, “Laurie, you are 16 years old and haven’t
finished high school.” Fortunately, Beloit College took her, mainly on the fact that her sister was
at Beloit and doing well. They took her and she still struggled all the way through her first three
years of undergraduate school; she’d go a year and drop out for awhile. It wasn’t until her senior
year at Beloit that she finally got her act together.
Mr. Pollak: Senior year in college?
Judge Mikva: In college. She got her act together and graduated from college; and
because of her doing well on the LSAT scores, a couple of years later she entered NYU Law
School, did extremely well, graduated with honors and went on to a good academic and legal
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career. But there were times in high school when Zoe and I were not sure that she or we would
survive the week.
Mr. Pollak: Well, what did you undertake in the Congress? What Committee
assignments did you get?
Judge Mikva: I was successful in getting on the House Judiciary Committee, which is
where I wanted to be. I got involved in a lot of interesting issues of crime and punishment. More
generally, that was when I first started pushing my gun control issues, most of which would get
assigned to the House Judiciary Committee. I could never get very far with them, but I got them
assigned. My second term in Congress I went on the D.C. Committee, which was an act of
political bravado. My wife kept saying, “You know nothing is going to make people angry back
home more than if you are on the D.C. Committee worrying about D.C. schools while Chicago
schools are going down the tubes. They will be very unhappy that you are wasting time on the
D.C. Committee.” I realized that it wasn’t a good political move but, again, I had a safe district;
and it seemed that there were some things that I ought to do with my security.
Probably my proudest accomplishment during those two terms that I was in the Congress
and on the Judiciary Committee – well there were several things: one, I was involved in helping
defeat the attempted impeachment of Justice Douglas. That came through the House Judiciary
Committee, and I remember I and Congressman Jacobs from Indiana were assigned the
responsibility of jousting with then-Congressman Gerry Ford who was leading the fight to
impeach Justice Douglas. There were some interesting debates on that issue. At one point, we
were twitting Congressman Ford on the fact that he was arguing for impeachment and he couldn’t
even define an impeachable offense. The Constitution says that the person we impeach shall be
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guilty of high crimes and misdemeanors. And what were the “misdemeanors” that Justice
Douglas was accused of? Did he mean parking violations or traffic violations? Actually, Ford
tried to explain that that wasn’t what misdemeanors meant. We kept saying, well, ”What does it
mean, what does it mean?” Finally in exasperation, he said, “I’ll tell you what is an impeachable
offense. An impeachable offense is anything that 218 members of the House say it is.” At the
time we hooted; but I’ve thought about it since and, of course, he is absolutely right. There is no
definition of impeachment, and I can’t imagine a court ever reviewing the judgment of the House
that decides to impeach a president or a judge or anybody else; so indeed it is what 218 members
of the House say it is — a majority vote.
Mr. Pollak: Did you maintain good relations with Ford when you were doing this?
Judge Mikva: Oh yes.
Mr. Pollak: You did?
Judge Mikva: We maintained good relations while he was President and even after he
was President. I have always liked Gerry Ford. He is a decent person. We don’t agree on issues,
but he understands the role of government and is committed to it. I share former President
Carter’s view that as President he did more to pull us together than any single person did. He did
quite a job.
My other great legislative success during that period, aside from helping to beat back the
impeachment effort, and a few things like that, was to get a section of the Internal Security Act of
1950 repealed. I had gone to speak at Hyde Park High School, which is a predominantly
African-American high school in my old district, and while I was speaking there, during the
question and answer period, one of the students got up and said, ”Congressman, what are you
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going to do about all those camps where they are going to put us black folks?” I said, “Well I’m
sure you’re mistaken about .those camps. They don’t exist.” He showed me a copy of the Black
Muslim newspaper called Mohammud Speaks; and in it there was a picture of a camp, which it
insisted was in central Illinois, that was reserved for African-Americans if they demonstrated or
otherwise were deemed to be troublesome. I again assured the student that this was somehow a
misperception, but I promised to send one of my staffers down to this location and find out what
was going on. The staffer went down there and came back and with dismay told me that yes
there was a property down there and it said ”Property of the United States Government – Keep
Out.” It had been a former military base of some kind and was now being maintained by the
Department of Justice. It wasn’t open, but somebody down there told them it was pursuant to the
Internal Security Act of 1950. I was horrified. So I started digging into it and sure enough, in
1950, when the country was in the midst of its McCarthy excesses, the Senate was pushing a
proposal even more Draconian than that one, and of all people, Senators Douglas and Humphrey
had offered an amendment giving the government standby authority but keeping the camps from
opening up right then and there – which is what I think the original proposal would have done. It
is the kind of compromise that was probably justified at the time, but here 19 or 20 years later,
these camps were still on a standby operation; and we were again in some period of unrest as far
as dissidents were concerned. This time there were racial tensions rather than political tensions.
But the African-American community had good reason to be concerned about this provisional
law because it gave the Attorney General almost plenary power to detain people in these camps.
Well, when I started getting involved in it and decided I wanted to do something about it, I found
out that I had not discovered this lost section of the law. There was another constituency that
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knew about it and was very unhappy and was trying to get it taken out of the law, and that was
the Japanese-American community. They, with good reason, knew about the dangers of
detention camps. They had suffered through them in World War II, even without the benefit of
law. President Roosevelt used the camps to detain Japanese-Americans. Then Congressman
Matsunaga from Hawaii, later on Senator Matsunaga, had for at least two or three terms been
putting in a bill to repeal that section of the Internal Security Act. Each time he would put in the
bill, it would go to the House Un-American Activities Committee and would not even get a
decent burial. He could never get a hearing. He could never get anywhere with the bill. He
offered to let me co-sponsor it with rum, and I said yes; but it seemed to me that it wouldn’t do
any better with my co-sponsorship than it had done with his. My staff and I started to noodle
about it, and it was one of these times when understanding the procedures is even more important
than understanding the substance. My staff and I hit on the idea that instead of repealing that
section under the Internal Security Act, an Act which was under the jurisdiction of the House UnAmerican
Activities Committee, we should put in a section in Title 18, the Criminal Code, that
said no one shall be detained in any federal facility except pursuant to the provisions of this Title.
Such a bill would have the effect of repealing the obnoxious provision indirectly. I worked on
the bill and went up to the parliamentarian and I said, ”If we introduce such a bill,” and I
described it to him, and asked “What Committee would it go to?” He grinned broadly and said,
“Well that would go to the House Judiciary Committee, of course — it’s Title 18.” So I
introduced the bill, and it was assigned to the Judiciary Committee, of which I was a member;
and it went right through the Committee almost without opposition and came out to the floor.
The then-Chairman of the House Un-American Activities Committee complained about the way
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we had backdoored bis jurisdiction, but that was a technical objection, and the bill passed with a
very substantial vote. It wept over to the Senate, passed on a voice vote, and President Nixon
signed the bill. I was very proud of the fact that I used those arcane procedures to good effect.
Mr. Pollak: Who was the leader of the House, McCormack?
Judge Mikva: McCormack was the Speaker. I was not one of bis favorites.
Mr. Pollak: You weren’t?
Judge Mikva: No. He was very unhappy with those of us who were opposed to the war.
He felt that was great party disloyalty and, in addition, that we were suspect for all kinds of other
reasons. Whenever I would seek recognition on the floor, he would say, “The gentleman from
New York.” And the parliamentarian would lean over and remind him that I was from Illinois;
and I was never quite sure whether it was my antiwar feelings or the fact that I was Jewish, but
one or the other, he had assumed that l had to be from New York.
Mr. Pollak: Did you ever make up with him?
Judge Mikva: Oh, you know, we never had an open conflict. I was not one of his great
admirers. I’m sure I was not one of bis great favorites.
time?
Mr. Pollak: Were you close to Phil Burton?
Judge Mikva: Yes.
Mr. Pollak: Was he in the leadership? Were you close to some of the leaders at that
Judge Mik:va: He was not in the leadership. We had a group of congressmen. Our title
was “the Group” — that was the only title we gave ourselves. There were about 10 or 12 of us. It
included a lot of the more progressive members of the House: Phil Burton, Don Fraser, Ben
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Rosenthal of New York, William Fitz Ryan of New York, Bob Eckhart of Texas, Don Edwards
of California, George Brown of California, Bob Kastenmeyer of Wisconsin. It was just about the
time that the reformers and the more progressive elements within in the Democratic contingency
of the House began to assume more authority. For instance, one of the groups that had always
been kind of a reform group and a thorn in the side of the leadership was the Democratic Study
Group. But after the initial efforts by Gene McCarthy, when it was then known as ”McCarthy’s
Marauders” and later on by a young Franklin Roosevelt and a few other of the Democratic
mavericks, it sort of settled in; and while it was never quite a part of the leadership, it worked out
a modus operandi with the leadership. Several of the chairs of the Democratic Study Group
worked pretty closely with the leadership and it sort of began to be that their major issue was
civil rights and on that they could work with the leadership because the leadership supported
their efforts to do something about civil rights. But they sort of stayed out of the war issues and
stayed out of some of the other issues that would rankle the leadership. And then, just about the
time I came there, the mood began to shift and there was talk about setting up a rival group to the
Democratic Study Group; and, lo and behold, Don Fraser was elected Chair of the Democratic
Study Group. Don was one of our group who was known as a progressive member who was very
much against the war and was going to push some of these issues. At that point, DSG began to
be again the focal point of not opposing, but prodding the leadership to move a different
Democratic party agenda than had been pushed in the past. So, following Don Fraser, there was
then the succession – Phil Burton became Chairman of the Democratic Study Group; I became
Chair of the Democratic Study Group. The Group, Group with a capital G, started to gain pretty
much influence in the House. I think that at one point there were only 10 or 12 of us and then
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came the election of Bella Abzug. I think that would have had to be 1970, does that sound right?
But whenever it was, some of the other New York members began to push for her to be admitted
to our Group. Phil Burton was very opposed to this. He kept saying, “Fellows, she is antiestablishment,
she is anti any institution – even our institution will be too straight for her, too
close to the leadership. If we let her in, it would be a bad idea.” He kept resisting, and some of
us kept pushing. I think I was sort of neutral on the subject, but at one point when push came to
shove, he said, “You know, if we let her in, you might as welljust forget about the Group. There
won’t be any other reason for us to exist. She’ll pull it apart.” I regret to say that he lost that fight
and somewhere in the early ’70s, she was admitted to the Group. We had one meeting, and she
criticized all of us for not being vehement enough against the war; and that was the end of the
Group.
Mr. Pollak: lt was?
Judge Mikva: Yes.
Mr. Pollak: Do you think it was Bella Abzug or women?
Judge Mikva: Oh, it was Bella in part, but it was also that we had outlived our function.
Mr. Pollak: The Study Group had really taken over. Did you work with Frank
Thompson?
Judge Mikva: Yes, I was very fond of Tornpy. He was one of the ones who was active in
the Democratic Study Group and very much a reformer.
Mr. Pollak: But also with the leadership?
Judge Mikva: Right. He made an accommodation with the leadership. He and Phil
Burton did not get along.
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Mr. Pollak: Did you ever come to some resolution in your own mind as to why he went
wrong in Abscam? Was it his drinking?
Judge Mikva: Oh absolutely – no question about it. I was on the Court by the time the
Abscam cases came up on appeal; I recused myself and said semi-teasingly, ”I know which ones
are guilty without reading the record.” If someone had prodded me on that, I would have said
that all of them I knew were guilty, with the exception of Thompson. Because with Thompson,
you might as well have injected him with a chemical, a poison chemical, that would have
accomplished the same result. Everyone knew that Tompy had a drinking problem, and I still
remember the most awful part of the transcript was where the agent, who was trying to get
Thompson to take money and Thompson was resisting, went to the telephone, called up his
superior in the FBI and said, “Congressman Thompson won’t take the money.” And the superior
said, “Give him some more booze; he’ll take it.” They went back and plied him with more booze
and at some point he took it.
Mr. Pollak: I wonder why that didn’t exonerate him?
Judge Mikva: Well, it came out during the appeal; it came out during the trial; but as you
recall, the law of entrapment is very, very bad as far as defendants are concerned.
Mr. Pollak: I knew him very well and felt that was a terrible tragedy for a man who was a
great public servant.
Judge Mikva: He was; and, again, sober I’m absolutely convinced that Thompson would
never have taken a dime. Drunk he was capable of doing anything.
Mr. Pollak: Does your second term distinguish itself from your first term in terms of this
oral history?
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Judge Milcva: No, I sort of lumped the two terms together because they were pretty much
one of a piece. The only difference is I was on the D.C. Committee and got involved in some of
the D.C. issues. That is when I first ran into Marion Barry.
Mr. Pollak: I see, how did that come about?
Judge Mikva: Well, he was a lobbyist for one of the civil rights groups. I forget the
name of it, but he was into wearing a dashiki, those long white gowns; and he used to terrify the
chairman of our committee, John ….
Mr. Pollak: McMillan, right.
Judge Mikva: From South Carolina. On the other hand, Barry and I got along; and we’d
chat after our Committee meeting. McMillan would see me on the floor and he’d come up and
say, “Aren’t you scared of that man?” He was serious. He was sure that Barry would somehow
physically assault Members of Congress if we let him close enough. But I found Barry to be a
very effective lobbyist, a very effective spokesperson; and I shared the dismay of others that his
political leadership later wasn’t as great as it was then.
Mr. Pollak: Did you have any other activities besides your family and the Congress in
those four years?
Judge Mikva: No, I spent a lot of time commuting. We finally worked out a modus
vivendi where I would go in on a Thursday night if the House adjourned on Thursday — and
spend all day on Friday doing what was necessary in the district. I’d spend most of Saturday
doing that and came back Saturday night so I could spend Sunday with the family here in
Washington. Every time I feel sorry for myself, I think about those California Representatives
who were doing that but they were flying all the way out to California — taking the red-eye both
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ways, in order to meet their schedules. I decided that however bad commuting was, it was better
to commute for an hour an_q qne-half than it was for four and one-half hours. There wasn’t really
any change in my rhythms and patterns of my congressional service until the early part of 1972,
or I should say late in ’71, after the middle of my second tenn We needed a reapportionment
because of the ’70 census, and the Illinois delegation agreed on a map. It was marvelous the way
the delegations took care of themselves at that time. It was a bipartisan map in which the
Republicans and the Democrats agreed that all the incumbents would be protected. The lines
were drawn to take care of everybody. In fact, I think we had to lose a seat at the time, but we
even agreed that one of the members who was going to leave anyway, either to run for something
else or retire, would have his district eliminated. But every member of the delegation was drawn
a district which was comfortable for rum or her to get re-elected.
Mr. Pollak: Any women or African-Americans from Illinois?
Judge Mikva: Ralph Metcalfe was a member of the delegation.
Mr. Pollak: Dawson?
Judge Mikva: Oh wait, Dawson still was there, I think, and Metcalfe came later.
Metcalfe was elected in ’70. Then we had Collins.
Mr. Pollak: Cardis Collins?
Judge Mikva: The husband, it was Cardis’ husband. His name was George Collins from
the west side of Chicago. Were there any others? Those were the two.
Mr. Pollak: Was Marguerite Stitt Church still in the Congress?
Judge Mikva: No, no, no.
Mr. Pollak: She’s gone?
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Judge Mikva: Phil Crane already had that seat. Oh, there was a woman from Northern
Illinois – a nice Republican }”Oman, I can’t remember her name. She later went on to the Federal
Communications Commission. Anyway we had worked out this map. It was going to solve our
problems. But then late in ’71, it became apparent that the legislature, which makes the decisions
on how the map should be drawn, was going to kick over the traces. There was a Republican
Governor, and, I think, one of the Houses was in Republican control – I think the House of
Representatives. There were a couple of members that were interested in carving out seats for
themselves, and they didn’t care whether the incumbents were protected or not. That was bad
enough But then the complication, of course, was that I was not Daley’s favorite Democrat; and
so his task, as far as he was concerned, was to protect the good loyal Democrats. The map that
finally ended up getting adopted in court, because it was roadblocked in the legislature, was
basically the map that the Republicans in the legislature had drawn and that Daley had not really
had that much objection to. It took my district and cut it into three pieces – one piece of it,
including the area where I lived, was mostly Ralph Metcalfe territory, a popular and prominent
African-American Congressman. He had been an Olympic runner in 1976 and was a very
popular man. The suburban piece in my district was given to Congressman Derwinski, who was
a very conservative Congressman, and the whole district was very conservative. It included all of
the southwest suburbs of Chicago plus my suburbs. Then the middle of my district was given
over to Morgan Murphy who was an incumbent Congressman. So I would have to run against an
incumbent, and none of those three districts were very appealing politically. I could not beat
Ralph Metcalfe in the one I lived in; the middle one of Morgan Murphy’s included a substantial
piece of my former district but was basically Morgan’s. As one of my staffers said, that district is
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30% black and 70% anti-black and is not one in which I could have beaten the incumbent. So at
that point I had to decide whether I was going to leave the Congress or move. I started looking at
the North Shore district which had been carved out as a Republican district, and Phil Crane was
living in it; but Crane saw an opportunity to get a much more secure district further west, and he
made it pretty clear that he was going to move to that western district, which is one he still
represents. That left that North Shore District without an incumbent Congressman. The more I
looked at it, the more attractive it became; it included Skokie and Evanston, and maybe some
pale blue collar communities up there, like rural Des Plaines. A lot of my former constituents
were living up there. They had moved from the Southside when the district and the areas had
changed and moved up to Skokie and Evanston; Adlai Stevenson, when he’d run for Senate in
’70, had carried that district when he’d won the election. So I looked at it and it looked more and
more attractive. I remember Paul Douglas was still alive. He had always been my mentor. He
was very concerned about what was going to happen to me. I called him to tell him what my
decision was. He said, “What are you going to do?” I said, “I’m going to move up to Evanston.”
He said, “Oh my dear boy, how ridiculous.” He said, “They would never vote for you with your
views.” He said, “Why I lost Evanston,” and would proceed to count the number by which he’d
lost Evanston every time he’d run. He said, “You’ll get chewed-up up there. Don’t, whatever you
do, don’t do that; run against one of the incumbents, that makes much more sense than getting
sacrificed up there amongst those Republicans.” I said, “Paul, I think I can carry Evanston.” He
said, “Oh, don’t, you’re being naive.” Well, we were both right. I carried Evanston but I lost that
election.
Mr. Pollak: Who did you lose it to?
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Judge Mikva: Sam Young. He won that one term I had a hot primary fight against one
of the party committeemen out there, and I had won the primary quite handily; but I lost the
election barely. I lost it by less than 1 % of the vote. I lost my seat. But I took him on the next
two times, and I beat him Two times I beat him, and then he gave up; and I ran against John
Porter, beat him, and in 1979, I resigned. But that was a traumatic period for me because it
meant not only giving up my seat and then giving up my old district, and having to move my
family from Washington back to Illinois, moving them to Evanston, making a big to-do about the
fact that we were committed to Evanston, to stay there even when we lose. And I lost and we did
stay in Evanston. I liked it. It was also the hardest campaign in my life, and I lost it. The first
Tuesday after the first Monday in November of 1972, when we surveyed the final results, I had
lost my job, I was somewhat in debt, I don’t remember the exact amount, but a considerable
amount. I had two more paychecks coming. I had two kids in college and a third one in high
school, and I was broke and out of a job. It was a very traumatic period.
Mr. Pollak: Well, I would like to ask you a question based on that re-map experience and
that is for you to speak from that experience about this half-decade long litigation that’s still
going on over re-mapping under the Voting Rights Act. I’m interested in your own experience in
seeing the way districts were drawn and for what purposes and whether you come out of that
feeling that drawing them for political purposes is okay, but to the extent that race comes in, it’s
okay when it comes in for Ralph Metcalfe, but it’s not okay when it comes in for minorities
generally. Or, it’s something I’m interested in, the practicalities.
Judge Mikva: I think the biggest disagreement I ever had with Justice Brennan was on
that issue because I came out of that experience very unhappy with the result, obviously. I had a
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subsequent experience in 1975 when I had just won my seat back, but 1974 was also a big
Democratic year, and we’d_ ylected a Democratic Governor and both Houses. We had both
Houses in the legislature under Democratic control with a Democratic Governor. Daley decided
that that was a good time to reapportion the legislature to pick up an extra seat for the Democrats.
The map would have done that, but it would have put me out. The re-map ran through my front
bedroom and then out to the west suburbs of Chicago, which is Dupage County, a solid
Republican area. I could not have won there. John Erlenborn was the incumbent Congressman.
John came over when the map first surfaced and said, “Ab, you’re perfectly welcome to run.” I
said, “Thanks a lot.” And it would have absolutely driven me out of the Congress again, but I
was able to beat that remap politically by mustering tremendous support from the newspapers,
and from the Republicans because Daley was doing it to pick up a seat, so they were supporting
my efforts to beat the map. Then I got the independent Democrats in the suburbs and down-state
to vote with me, and in a very dramatic showdown in the House – it had passed the Senate – and
in a very dramatic showdown in the House a solid Republican vote and the independent
Democrats defeated the map, the re-map. I used to tell Brennan that that’s the only way you can
beat gerrymanders. There is no way the courts are going to be able to supervise
reapportionments to keep politicians from doing what politicians do best, which is arrange the
districts to their political liking. Now, when the re-map blatantly is done to exclude a particular
group, whether it’s Blacks, or Hispanics, when a remapping does that, I suppose that the court can
get in. This is the sense I make out of Justice O’Connor’s position. But the notion that the
courts will supervise the political activities of the legislative bodies or will insist that they be
picture perfect in the way they do it is impossible. I remember Justice Brennan authored an
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opinion which threw out a New Jersey re-map because one of the districts was .001 off in its
population; and I kept saying, “Bill, Justice Brennan, there is no way that courts can understand
all of the political ramifications of where the districts should go or which neighborhoods should
go together. Sometimes it is fair to have a population discrepancy and not break up a
neighborhood, or it is fairer to have a population discrepancy and give a voice to a particular
constituency, whether it’s ethnic or religious or racial or whatever, than it is to insist that every
district be mathematically, precisely the same population.” And I feel that way about efforts of
the courts to supervise what the legislative bodies are doing. Now, I was not for, politically – I
don’t think it was a good idea – when the Republicans, under Presidents Reagan and Bush,
reduced the margin of Southern Democrats by rejuggling all those districts in the South and
putting all the minorities in one district. No question, it did provide for more minority
representation in the House, more southern blacks. When I came to the Congress in ’68, there
were no southern blacks. None. Now there are a large number of them, but there are less
Democrats in all those states because what they did is that they took districts which had
Democratic majorities because of minority population and put all the minorities into one district
and the remaining districts then became solid Republican districts; so I think the last time I heard
somebody talk about the numbers, somebody counted some 30 or 32 Democratic seats that were
lost as a result of this political racial gerrymandering.
Mr. Pollak: I’m told that the NAACP Legal and Educational Defense Fund disputes that
theory – I don’t mean to diminish it as a theory – and said that the collection of Blacks in
particular districts did not cause the other districts to become Republican. But I don’t mean to
raise that other than to say to you that your view of what has happened was what you just stated?
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Judge Mikva: Right, yes. It’s an arguable point because, like most elections, the
difficulty with close electio:n:s is that they are like the ten blind men, each feeling a different piece
of the elephant and describing what it is that they felt. One of them says this is a tree, and
another says this a snake, and that’s true of looking at a close election. You can say that any
particular thing was what caused the election to come out the way it did. It is because you lost
the Black women with green eyes, depending on how close the election, that made the difference.
There were other movements, there were other forces at work at the time in the South The
Republican party was gaining a revitalization in many of the southern states. There were a lot of
new people moving into the South There was an awakening of Black pride, which insisted in
these areas that they wanted Black representation and not a white representative even ifhe had
supported civil rights matters. They still wanted one of their own, which is an understandable
fact of life. So I don’t dispute that it is a disputable point. The point I am making, though, is that
much as I don’t like the result, I would have wished the courts had reviewed those cases with a
lighter hand; and yet I don’t think that is where the “political thicket” is. Just as Frankfurter was
wrong when he said “that.”
Mr. Pollak: You don’t differ with the reversal of Colgrove v. Green? Baker v. Carr?
Judge Mikva: No, Frankfurter was wrong in Colgrove because at some point the courts
do have to supervise the political results because the politicians aren’t going to reapportion
themselves. To prove that, for over 50 years, before and after Colgrove v. Green, it wasn’t until
Baker v. Carr that we began to give urban constituencies an appropriate place and we began to
give various racial minorities and other minorities an appropriate voice in the legislative bodies.
So, he was wrong, but he wasn’t wrong when he said there is a political thicket because at a
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certain point, if the judges don’t realize what the political problems are, and they don’t, and they
start charging in there witb technical legal concepts, you can’t make a district automatically good
simply by legal concepts. A good political gerrymander is sometimes going to provide better
representation for the people involved than a picture perfect, mathematically equal, judicial
reapportionment.
Mr. Pollak: Two questions, did you ever have a case in which you drew upon this fund of
real world experience?
Judge Mikva: I was on a couple of three-judge courts. As you recall, under the Voting
Rights Act, those cases when they come to court are resolved by a three-judge court that includes
two Court of Appeals judges and one District judge. But none of mine came to fruition. They
were always settled before we had to get into them I always thought that it was one of the places
where I felt that my political experiences were helpful to my role as a judge because I think I
understood the limitations on the affect and consequences of judicial power in those
reapportionment cases.
Mr. Pollak: The other question I have is whether you find in Justice O’Connor, who does
seem to be calling the tune in this field today, positions which are congenial?
Judge Mikva: Some of them yes, because when she states the first proposition that you
cannot draw a seat strictly for racial purposes, I think she’s right because otherwise that would
get us back to those battle days when they would draw seats to deliberately exclude an effective
voice for racial minorities. You can’t have one side and not the other. You can’t say, well, it’s
okay if it’s benefitting the racial minority but it’s bad if it’s hurting a racial minority because there
are all kinds of minorities. Some of the districts that were at stake in the cases that were
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reviewed and decided by Justice O’Connor, there were white minorities in these districts who felt
that their rights were being djmin.ished. So, she is right when she says that cannot be the
overwhelmingly predominant purpose, but I would have tried to phrase it differently so that it
didn’t automatically strike down all of the districts that she did; I still think a bad political
gerrymander is often better than a good judicial reapportionment. That’s where I stand.
Mr. Pollak: Well, it is undoubtedly a long and complex issue which, at least at this time,
particularly since you haven’t really sat on it, one needn’t pursue. But one further question occurs
to me, and that is your reactions given your own experiences to the unusual configurations of the
North Carolina and of the Louisiana districts that the Supreme Court reviewed.
Judge Mikva: Again, yes they were unusual; yes they did stretch out from all lcin.ds of
places; but you know O’Hare Field is a part of the City of Chicago even though its closest point
of proximity is 15 miles away from the city border. That was done by the legislature, while I was
there, annexing O’Hare to the City of Chicago by a mythical one inch line. Now, a lot of people
say that is a perfect example of exactly the land of gerrymandering that shouldn’t happen; but on
the other hand, that was a political decision that the political forces decided made sense. Chicago
had need to control that airport. A Republican governor and Republican legislature decided that
Chicago could better promote and develop the airport than if it was given over to a separate
authority or if we let the little suburbs that really surround O’Hare run the airport. Now, are there
problems? Of course there are. I represented all those suburbs that surround O’Hare, and trying
to get the City of Chicago to pay any attention to noise abatement was very hard. I’d come in and
testify before the committee, and we’d have all these city aldermen sitting there; if they showed
up at all, they’d be reading the newspapers. What do they care about noise? It didn’t affect their
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constituents. My people in Park Ridge and Des Plaines were the ones who were having their
barbecues and their concerts ;m.d everything else spoiled. But, on the other hand, the economic
development and the other plus sides of it were high for the city. Is it a gerrymander? You bet it
is. As I say, you won’t even see it on the map, that one inch. Now, when is a district so unusual
in its shape that it should be struck down? The original gerrymander, everyone forgets, was
upheld. Governor Gerry, in fact, rearranged the districts in his state; I can’t remember what his
state was. The last thing in the world anyone ever thought about at that time was that the court
should get involved. If you want to fight gerrymandering, you fight it politically. You fight it in
the newspapers. You fight it in the reform groups. So, the answer is that I like Justice
O’Connor’s simplest first point; but then she goes on with some other factors as well. If you can
establish that the only reason for creating that district was to deprive somebody of representation
-I guess that is the way I would phrase it -then you have reason for the courts stepping in.
Unless you can do that, I’d let the politicians be politicians.
Mr. Pollak: So you got back into the Congress, defeating the Republican and where did
you go on committees and what was your-you served then three terms. Did you go back on
judiciary?
Judge Mikva: I did ultimately, but before I came back to Congress, I spent those two
years teaching and working while I was a partner in a law firm and sort of revving up for the next
campaign.
Mr. Pollak: Is there anything you want to say about the teaching experience or the
practice?
Judge Mikva: No, I tried Northwestern. It was very stimulating.
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Mr. Pollak: Justice Stevens there, teaching?
Judge Mikva: No, he wasn’t then. He does occasional teaching. My practice then was a
commercial practice. I did a lot of tax work.
Mr. Pollak: D’ Ancona and Pflaum, not Goldberg’s firm?
Judge Mikva: D’ Ancona and Pflaum, not Goldberg’s firm. In ’74 when I ran again, it was
a Watergate year, and Mr. Young had not really distinguished himself in his first term I guess
that’s when I realized the district was much more Republican than I had been willing to admit
because I barely won; I won by less than 51 % of the vote. And you know 197 4 was a strong
Democratic year.
Mr. Pollak: I see, you didn’t have to nm against the incumbent?
Judge Mikva: Yes, I did.
Mr. Pollak: Oh, Young had beat you?
Judge Mikva: Young had beat me in ’72.
Mr. Pollak: Oh, he beat you in ’72, so he ran against you?
Judge Mikva: So he ran against me in ‘7 4.
Mr. Pollak: So he had the advantage of the incumbent?
Judge Mikva: He was the incumbent. I was running against the incumbent; but, on the
other hand, ’74 was a very good year. A lot of incumbents got beat.
Mr. Pollak: Right.
Judge Mikva: I had this great name recognition. I think one of the most telling things
about the name recognition I learned in ’72 when my first poll was taken. Peter Hart took my
poll in ’72 when I first made the decision to move up there. He came back with results that I was
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ecstatic about. It showed in a head-to-head race that I was winning 41 % to 13%. I thought, that’s
terrific, a 28 point lead, you. know. I hadn’t started to campaign, and I realized Mr. Young was
not a great campaigner. Peter said, “You’re in trouble.” I said, “Come on Peter, I know I have to
work hard at this but this is pretty encouraging.” He said, ”No, you should be very discouraged.”
He said, ”Look, you got 41 % of the people agreeing to vote for you; 98% of the people know
who you are. You have to worry that all those people who know who you are, aren’t for you.
Now what can you do to pick up another 10% of those people to get over 50?” And the answer
is, no matter what I did, I didn’t do it. I got up to 49% and that was as high as I got. I realized, as
I said in the ‘7 4 election, that it basically was a Republican district and that I won partly because
it was a Watergate year, partly because Young had not distinguished himself, partly because
again I was well known, and partly because the only appeal I had to a big part of that
constituency was almost the elitist appeal of having been an honors graduate of the University of
Chicago and being a Supreme Court Clerk. My Phi Beta Kappa key, which had been a liability
in Springfield, was a plus on the North Shore. In fact one of my committeemen who was my
intellectual guru had said, “You know, you ought to wear your key.” And I said, “Lynn, you
don’t wear your key.” He said, “You got to wear it,” he said. “You’re good at those Kiwanis
Clubs and other places.” I won barely. My opponent and I were embarrassed that we both broke
a record as to how much money we spent in that campaign. We each spent close to $500,000.
We were even more embarrassed the next time out because we spent even more and broke our
own record in 1976 where we spent, between us, over $1 million. That was the most money that
had ever been spent for a congressional seat. But it was one of those districts that was just
divided sharp down the middle. I never did win by more than 51 %. Anyway, in ’74 when I went
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back, I went on the Ways and Means Committee. This was a real reform Congress. Phil Burton
was Chairman of the Democratic Caucus.
Mr. Pollak: Who got you on Ways and Means?
Judge Mikva: Phil Burton. The Congress that I missed had just begun to reform the rules
of procedure, and one of the things they had done in the Caucus was to strip the Ways and Means
Committee of their committee on committees authority. In the past, the reason most people went
on the Ways and Means Committee was not to do the jurisdictional work, but rather because they
had the power to pick the other committees. The reform group, led by Burton and Fraser and
others while I was gone, had stripped the Ways and Means Committee of that authority and given
it over to the Committee on Steering and Policy of the Democrats. That was a committee that
was elected in part by members of the House and part selected by the Speaker. It was a much
more representative committee for choosing other committee slots than the Ways and Means
Committee. And they decided who would go on the Ways and Means Committee. Phil Burton
was on that committee, and he was Chairman of the Democratic Caucus so he had a lot of
influence. He pushed me and he pushed Congressman Jacobs on the theory that we were the two
re-treads that were coming back after having lost our seats in ’72 and that we were experienced
hands. Therefore, we ought to be getting some benefit for our previous service. Carl Albert was
still the Speaker, and I remember he gave me this story with great glee that he wasn’t opposed to
me, but he was not ultimately to be the primary mover Burton had been. Dan Rostenkowski was
then on the Committee, and Dan was not happy about my coming on. Among other things, he
didn’t like the idea of having two Illinoisans on that Committee; he had never been happy with
two people from the same State involved. Besides which, clearly he and I did not come from the
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same part of the political forest. He was unhappy about that. Anyway, Albert called me in
shortly after one of the committee meetings and said, “Well, I think I ought to tell you about a
conversation I had with your Mayor.” Albert and Mayor Daley disliked each other intensely
since the ’68 convention. Albert was Chair of the convention, and Daley thought that one of the
reasons things got out of control the way they did was that Albert wasn’t a strong enough
Chairman. Albert, on the other hand, was absolutely disgusted with the way Daley had handled
the police situation, the rioting; and so they were not warm buddies by any means. Albert said
that he got a call from Mayor Daley who said, “Carl, I think it’s outrageous the way you fellows
put people on committees without consulting with the delegation and the leader of the
delegation.” Albert said, “You know, Ab, your name never came up, but we all knew exactly
what we were talking about, we were talking about you going on the Ways and Means
Committee. I tried to reassure him. I said, ”Well, Dick you know these tbings happen.” And
Daley said, ”Well, we would never allow it to happen here in Chicago.” And Carl said, “Well,
that’s the problem with the democratic system, Dick.” He chortled with great glee. But I went on
Ways and Means which was and still is a very plum committee because of the jurisdiction. Even
without choosing the new committees, its jurisdiction is huge. It includes all the tax jurisdiction,
all the health, a good part of the health jurisdiction, the welfare jurisdiction, the special revenue
funds. We would get into all kinds of issues because anything that involves any kind of a tax
problem, or had kind of a tax piece, has to come through the Ways and Means Committee. And,
So it was a juicy place to be.
Mr. Pollak: You were not in the Congress for the Nixon impeachment?
Judge Mikva: I was not. I sat there and cheered my colleagues on but with great dismay
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and disappointment because I wasn’t there. Paul Sarbanes was physically sitting in the seat that I
used to occupy on the judiciary committee. We were close friends, and I was very fond of him
and still am But every time I’d see him expounding, I’d want to kick the television set in because
I was so angry that I wasn’t there.
Mr. Pollak: Wow! Well, who in all your congressional service were the staff people that
you would care to put in this record who were really significant to you?
Judge Mikva: The most significant, there were two very significant ones: one was Genie
Ermoyan who was my executive assistant for all the years that I was in Congress and all the years
that I was in the state legislature. She came to work for the law firm as a legal stenographer just
about the time I got elected to the legislature. Part of the reason she came was because she was
interested in politics and I had just been nominated to the legislature. She went to law school
nights. I remember she didn’t even tell anybody in the law firm about it, but the dean of the law
school she was going to was a member of the legislature at the time. He was dean of the John
Marshall Law School – which she was going to – and one time when we were riding down to
Springfield on the train, he started to berate me about how hard I was working that poor Genie
Ermoyan when she was taking a full load going to law school at night. That was the first I knew
she was going to law school. I called her and she said, well, she didn’t tell anybody because she
didn’t know how she was going to do. Anyway, she went to law school nights for 5 years,
got her law degree, and stayed with me, became my administrative assistant until I retired
from the legislature. When I came to Congress, she came to Washington with me and was
with me the whole time. The two years I was out, she went with Senator Stevenson but then
came back to me as soon as I was re-elected. She ran the office and my social
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calendar, and she was a marvelous combination of being a lawyer – knew everything about me
and my family. She was just perfect for the job. She died a few years ago.
The other one was Jack Marco, who now runs a consulting firm in Chicago. Jack came to
work for me, I think, in ’71 or thereabouts shortly before the reapportionment fiasco; and we
ended up losing. He stayed with me and finished out the term with me, and then in ’72 he went
to work in a state job. As soon as I let him know I was running again, he quit his state job and
became my campaign manager and remained in charge of my Evanston office all the time I was
in Congress those three terms. They were both incredible.
I had a lot of other incredibly strong people, but somebody had given me the idea that I
should treat the legislative assistant jobs the way judges treat law clerks and keep them for just
one term of Congress – for two years – and then force myself to give them up. Each time I did
that, I was very unhappy that I had started that tradition because they were just getting
comfortable with their job. I was just getting comfortable with them; but it made a lot of sense
because it meant that every two years I was getting a fresh voice and a fresh set of ideas, and they
are good apprenticeships. They gave people a look-see at the legislative process but then told
them to go out and do something more substantive.
Mr. Pollak: And perhaps they call on the Congressperson to keep learning.
Judge Mikva: Oh, you bet. I maintain that is one of the reasons the judicial branch works
as well as it does – the fact that every year you get in this group of very bright, very enthusiastic,
somewhat conservative set of clerks who ask questions. Why? Why are you doing it this way?
It’s helpful.
Mr. Pollak: Did you have a second committee, other than Ways and Means?
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Judge Mikva: Well, Ways and Means is an exclusive committee, and one of the reforms
that they put through whil? J _was still gone that one term was to set up these exclusive
committees where you are not supposed to go on a second committee. I observed that reform the
first term, but the second term the House Judiciary Committee was working on the recodification
of the Criminal Code. There were a lot of subjects there that I was very much interested in,
restitution and punishment generally, jails and all kinds of things like that. So I decided that I
would go on the Committee just to work on that; and I went to talk to Peter Rodino, who was the
Chair, and he said, fine, they’d love to have me. They would make sure I was on that
subcommittee chaired by Father Drinan, now teaching at Georgetown Law School. But I needed
special permission from the Caucus to take on a second major committee, as I had an exclusive
committee. I remember when I sought permission, I thought I was quite well known in the
House and reasonably supported by my colleagues. My request was sailing through proforma
and Phil Burton came rushing into the Caucus and said, “What’s going on here, what’s going on
here? Are you crazy? We’re breaking up all of the discipline we just set. Pretty soon people are
going to have two, and three, and four committees just like they did before. Who’s responsible
for this?” And then he turned around to me and said, “Oh my God!” and stomped out of the
room [Laughter]
Mr. Pollak: But you got it?
Judge Mikva: I got it. I enjoyed it.
Mr. Pollak: What would you say about these six years beyond what you’ve said. What
bills were you particularly involved in, what hearings, what’s your evaluation of the Presidents
you served, the leadership of the Congress, the relations to the Senate?
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Judge Mikva: It was an exciting period. Congress did finally bring a halt to the Vietnam
War in the good old-fashioned way. It wasn’t by suing the President or burning our draft cards or
burning the flag or anything else. The House finally got up its nerve at an appropriate time in
1975. The House voted down a $600 million appropriation bill that was designed to allow us to
withdraw with honor from Vietnam. I remember Henry Kissinger was patrolling the back railing
trying to muster up votes. Ford was President. I guess it was Bob Michel, the Minority Leader,
who was reading a letter from the President saying that if we didn’t have this money, all the dire
things that did in fact happen would happen; there would be people leaving ignominiously at the
end by helicopter. But the House realized that that was the only way the war was going to end, .
that we just had to do the one thing the House has the authority to do and that was to use its
power of the purse. And very painfully, and on a very close vote, we voted down the $600
million. lt was a night session. lt was May or June, it was the springtime, and a very tense
session in the House. As I said, Kissinger was controlling the back, and the leadership was very
divided on this. Some of the leadership was very much opposed to what we were doing. I think
the Speaker was neutral on it.
Mr. Pollak: And who was the speaker then? Foley?
Judge Mikva: No, it wasn’t Foley — it was either O’Neill or Albert. It may have been
O’Neill, I’m not sure. No, I guess it was Albert. But he was very nervous about what we were
doing. Pushing the envelope too far, challenging the President too much But it was interesting.
Everyone agreed that if that money was not appropriated, that would be the end of our
involvement in Vietnam. There was no way the President could carry it out. We voted it down
and the troops withdrew. We didn’t withdraw with dignity. I have to acknowledge that. But it
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was the right way to end the war. We couldn’t persuade the President to withdraw the troops, and
the power that Congress has is the power of the purse, not the power to bring on lawsuits and all
of these other things that we tried to do. Then in 1976, Jimmy Carter was elected President,
which was the first time I’d had an opportunity to serve under a Democratic President. That was
very exciting. I was on Ways and Means.
Mr. Pollak: How did it change things?
Judge Mikva: Well, first of all we had a Democratic White House. The Executive
initiatives were keeping to party policy by and large, though unfortunately the problems of
communication between the White House and the Congress just grew and grew and grew. When
he was first elected, we all had these high hopes that this would be a great productive,
progressive session in Congress. We would get a lot done, but we didn’t get as much done as we
had hoped during either ’76 or ’78. Part of it was that some of the staff he had just weren’t used
to dealing with Congress. Frank Moore, for example, had been very effective in Georgia, as
were Hamilton Jordan and some of the others; but they just weren’t able to carry that kind of
weight to the Congress. The problems stemmed from an outsider President who came in and
brought in a whole new crew, especially after we had been out of office for eight years.
Therefore there weren’t too many people ready to come into the executive branch and who the
President was willing to take on. It was during the height of the energy crisis. There was a lot of
energy legislation passing through the Ways and Means Committee. It was one of these
problems that legislation wasn’t going to solve. It was a problem that had other dimensions, and
I’m not sure we’ve solved it yet; America’s love affair with the automobile is not over yet. That is
one of the reasons we had a mild crisis, and we’ll have one again at the rate we are going. It was
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kind of interesting to be invited over to the White House and be on friendly terms with the
Executive and the administrative agencies. I remember a story I tell on the speech trail about my
1976 election. I won by 201 votes. This was after losing by less than a couple thousand votes in
’72 and winning by less than a couple of thousand votes in ’74. In ’76 I won by 201 votes out of
almost 200,000 votes cast. That year I got the landslide award of my colleagues for winning by
the smallest number of votes of anybody on the Democratic side. I still remember when I
attended my first reception as a member of Congress when the White House was being run by a
Democratic President; coming through the receiving line and feeling sort of pleased that the
President remembered me from when we campaigned together and said, “Hi Ab, good to see
you.” He shook my hand warmly and then he turned to Roslyn and said, “You remember Ab
Mikva, dear, don’t you? He barely won.” I realized that was my place in history, the “barely won
Congressman.”
Mr. Pollak: Did that influence you in going on the bench?
Judge Mikva: Not really. First of all, I enjoyed the district. Whenever I tell people that,
they can’t understand how I could enjoy a district that was so barely supportive. The Democrats
were my kind of Democrats. They agreed with me on civil rights, on the environment, and on the
other issues that I was pushing – on gun control – and many of the Republicans did too. And,
again, because there was a lot of stimulation to having those close districts where you know that
the spotlight is on you in everything. Fortunately, by that time I had been in the Congress long
enough that I’d lost once so that I knew that losing your seat is not the end of the world and that
sometimes it ought to happen to you. I still didn’t look forward to losing, but I was willing to
take some chances with the things I voted on. I remember my staff was very upset that I voted
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for a pay increase because pay increases were as unpopular then as they are now. I said, “Look, if
I have to lose my seat in Congress, that’s one I would just as soon lose it on as anything.” I
believe that public officials and government people ought to be paid a responsible wage, and I’m
not going to be dishonest about how I feel. So, I enjoyed the district. The constituency that
agreed with me were my kind of constituency. The problem was that I had been on the ballot
every two years for 24 years. I had worn out several generations of voters. I remember when I
went back on the Judiciary Committee, I had one of the junior seats and this young new
congressman introduced himself and said, “You know my grandfather.” I said, “How would I
have known your grandfather.” He said, “Well he was a Hoover-appointed federal judge in
Chicago and used to come home and talk about you sometimes, that you were a bright young
lawyer that had cases before him” It was Mike Barnes and, indeed, bis grandfather had been a
federal judge in Chicago. I had appeared before him, and I began to realize that I’d worn out
several generations of voters and I’d worn myself out. I remember we had this place in the
Dunes, which we’ve had since I was in the legislature. We were sitting there on the last weekend,
probably the Labor Day weekend, just before the campaign got into high gear in ’78 and I told my
wife Zoe, this is going to be my last campaign. She said, “Oh, you’ve been saying that for years.”
I said, “No, this time I really mean it. I’m just finding it so hard to get geared up, get enthusiastic
enough to take on the challenges.” I had made all these speeches dozens oftimes, and when you
start hearing yourself saying the same things over and over and over again, it is very hard not to
get jaded and lose that extra pitch you need if you want to win in those precincts.
Mr. Pollak: How close was the ’78?
Judge Mikva: It was close, I won by less than 51 % of the vote.
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Mr. Pollak: Wow.
Judge Mikva: I won py 1800 votes, I think.
Mr. Pollak: Did your service in the Congress put you into issues concerning the
judiciary?
Judge Mikva: Oh sure. I was involved in pay increases for judges. I was involved in
authorizing new judges to be appointed and the division of the old Fifth Circuit into two circuits.
There was a lot of judicial administration that came before the Judiciary Committee, and that was
something that I was interested in. That had been partly from my having been a law clerk and
partly from having practiced law for so long and mostly in the federal courts. I felt that this was
an interesting line that I wanted to pursue. So I was involved in a lot of judicial work before I
went on to the bench Frequently, when the judges did have issues on the Hill, I would get
consulted by Chief Justice Burger who otherwise was not always my closest ideoiogical aliy on
issues, but was a strong friend and supporter, and was delighted when I went on the bench He
thought I’d bring that extra know-how to the courts. He had a tradition of not appointing people
to committees until they had been on the bench for several years. My first year he appointed me
to a key committee that was working with Congress on working conditions and jurisdiction.
Mr. Pollak: Do you have anything else to add about the legislative experience?
Judge Mikva: I don’t think so.
Mr. Pollak: I’d like to ask you whether you, you know you’ve been at the White House,
you’ve been on the bench Do you have comments on Congressmen of 95/96 as compared to
Congressmen of your vintage? Not the individuals but the experience of federal legislating?
Judge Mikva: Well, I think it is not at a high level and I think it’s due to two things. I
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think that, first of all, even more of the members that were elected in ’94 have never had prior
government experience. A lo.t of them are holding public office for the very first time. I know
it’s a great way to get elected to say, ”I am an outsider; I am not a part of all those terrible things
that went on there under the previous Congresses.” But this is a very big leap to Congress in the
United States and you just don’t learn how to get things done overnight. It is sort of like
somebody going from T-ball to batting clean up in the big show, and it doesn’t work. I trunk this
is one of the reasons why the Republican leadership is in such trouble: there were just too many
things done that experienced legislators would not try to do. Just as one example, whatever the
faults of Social Security and Medicare, you do not make frontal attacks on those programs. The
combined political strength of the special interest group that represents our seniors, plus, and I
think that this is something that even our sophisticated political leaders in the House missed, plus
their children. It’s not only the people who are on Social Security that have a stake in preserving
it; it’s their children. Because the reason that those parents aren’t burdens to their children is the
Social Security program When you talk about cutting it, when you talk about cutting Medicare,
you are just taking on this humongous constituency that includes middle class, working poor, and
maybe even some upper middle class, and you are taking on large numbers of people. This is
where, I trunk, Congress got this reputation of being radical. They were proposing to slash key
programs that people have come to rely on. The other thing is that so many of them were elected
running against government. Now, again, it’s always easy to run against Washington.
Washington is not a popular place, and Congress is not a popular institution. But as one of my
colleagues, who I see in the gym said, “What I don’t understand is that if they hate it so bad, why
did they want to come here?” It’s very hard to be an effective and useful Congressman if you
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come in with a view that everything that Congress does is bad. Then all you want to do is get rid
of it and keep things from happening. So, I think that the level of legislating has been very poor.
I think that the majority party will pay a price for it this next election. I’ve been wrong before,
but I think that they will pay simply because they appear not to be able to make the institution
work.
Mr. Pollak: Did you do anything else in this six-year period besides your legislative
responsibilities? Did you teach?
Judge Mikva: No, I think I taught one time at Georgetown, I’m not sure but I think I did.
I found it just a little too complicated, mainly because the scheduling in Congress is so irregular.
On the court, no matter how hard you are working, you can schedule out time and keep that
commitment. It’s hard to do when you are in Congress.
Mr. Pollak: In this whole congressional era of yours, were there leaders or people who, or
ideas, that you came to rely on or model yourself on as you moved on toward the bench?
Judge Mikva: Well, there were some great people that I had occasion to meet and serve
with. I mentioned previously my experience with Paul Douglas, who acted as a kind of a
personal mentor. I had this great admiration for Mike Mansfield. He was Senate Majority
Leader. He just was so effective. I had a great admiration for Gerry Ford. I thought he was a
great President and had been a great Minority Leader when he served in that function in the
House. I didn’t know him as Vice President very much I had a great affection and respect for
Tip O’Neill. He was the complete politician as far as I was concerned, and he understood politics
in ways that not many did. He was a very effective leader. I’m not sure people realized how
much he influenced what happened and what didn’t happen in that House. Part of the reason
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people misjudge political leadership in the Congress so often is that they forget that a big piece of
the measurement of whether Congress has been effective or not is not only the legislation they
pass, but the legislation that they keep from passing. I used to say that sometimes the best thing
that Congress does is nothing. When you consider all of the irresponsible proposals that are
offered in any given Congress, a part of political leadership is keeping that kind of legislation
from passing. Take legislation to amend the Constitution. We have hundreds of proposals each
year to amend the Constitution. We would have 10,000 amendments for the United States
Constitution had they been allowed to pass, and some of them are very popular. Prayer in the
school decisions caused an uproar, as did the flag burning decisions, and a whole variety of
others. It takes good political leadership to keep those popular proposals from passing, which I
think ultimately is good for the country. I think it is important that we maintain a modest
Constitution that isn’t amended at every opportunity.
Some of the other people that I grew to admire, besides O’Neill and Mansfield and Ford,
were George Mitchell as the Senate Majority Leader. He took over after I left, but I watched him
and had some dealings with him, and I was always very impressed that he had a way of getting
things done and working out the consensus. One of the people that I really tried to model myself
after, and I’m not sure I was very successful at it, was Phil Hart. He was a Senator from
Michigan.
Mr. Pollak: I knew him pretty well. He was a model.
Judge Mikva: He took on these hard, tough issues and he took them on without
alienating people, without making people angry, without hurling invectives at them I thought he
would be very embarrassed about that mausoleum that they built, that they named after him; but I
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thought it was appropriate that the colleagues who disagreed with him more often than not,
because he was against the. w.ar and he was for gun control, and he was for a lot of unpopular
positions, named the newest Senate Office building after him I found it impressive that he
would get elected and re-elected all those times in Michigan.
Mr. Pollak: He was a nice guy who finished first.
Judge Mikva: He was a nice guy who finished first, and I often thought that that would
be somebody worth emulating.
Mr. Pollak: Did you have any activities in, up to the time you went on the bench with the
ABA? I know that at some point you became head of the section on …
Judge Mikva: The section on Individual Rights and Responsibilities. Congress is so allconsuming
you don’t have a chance to just participate in extracurricular activities. They have to
be related to the Congress. I worked with the ABA when they had matters on the Hill. I was
somebody that they considered an ally, and they would try to enlist my help if it was something I
agreed with them But I didn’t really have any active involvement. During the two years I was
out, I think I did; but, again, I think it was more on a local basis. I was on the Individual Rights
and Responsibilities section just as a member, though, not anything important. While I was in
Congress, I would help them when they had something that I could be of help on; but I was not
involved in any activities until I finally went on the bench
Mr. Pollak: Were there any confirmation battles?
