Henry Kennedy, Jr Sixth Interview, April 16, 2008

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ORAL HISTORY OF THE HONORABLE HENRY H. KENNEDY, JR.
Sixth Interview
16 April 2008
This is the sixth interview of the Oral History of Judge Henry H. Kennedy, Jr. as part of the
Oral History Project of The Historical Society of the District of Columbia Circuit. The
Interviewer is Gene Granof. The interview took place in the chambers of U.S. District
Judge Kennedy in the Federal Courthouse in the District of Columbia on Wednesday,
April 16, 2008.
Mr. Granof: We have talked a lot about the Superior Court, but the one topic that I
reserved for last is a case I know that you think — and from what I read, I
think too — was highly significant, which is the Porter case dealing with
DNA evidence. It’s a fascinating case because it really indicates the
breadth of knowledge and experience judges have to have — the analytical
ability. Perhaps it says something about how judges go about their work
and that they really are something more than just an umpire or somebody
just applying the law to the facts. So I’d like you to talk about that case
and describe how you came to decide it and what it’s about.
Judge Kennedy: Well, for me the Porter case was a — I’ll use the word “defining,”
although that might not be the correct characterization — but it was
certainly one of the defining cases in my judicial career. Defining in the
sense that I found it very challenging. The issues were very important,
and it called upon me to really stretch when it came to determining what
the law is and how to apply it. The Porter case was a criminal case in
which the defendant, Mr. Porter, was charged with raping the sister of his
girlfriend. Obviously, rape is a serious charge, and an important piece of
evidence which the prosecution intended to present during its prosecution
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of the case was a new type of evidence at the time. It was called DNA
evidence. DNA stands for deoxyribonucleic acid. And this was a forensic
technique that actually originated in England and was the subject of a
book by — I’ve forgotten the very famous writer who wrote this book —
but the name of the book was The Blooding. In any event, in the District
of Columbia we apply the Frye rule when determining whether to accept
into evidence a new scientific method or new scientific evidence. And
the rule basically says that the court should admit into evidence this new
forensic evidence if there is a consensus among the scientific community
that such evidence is reliable.
Mr. Granof: And that’s opposed to having the individual trier or decider, the judge,
make a decision that it is or isn’t reliable?
Judge Kennedy: That’s correct. Now the Frye rule, by the way, has been since overturned
or has been superseded by a Federal Rule of Evidence that has been the
subject of much writing that requires the judge to be much more of a
gatekeeper in determining whether such evidence is admissible. I’ve
forgotten the name of the case.
Mr. Granof: Is that Daubert?
Judge Kennedy: Daubert v. Merrell Dow, which is the rule in federal courts. But even now
in the Superior Court, as it was then, it is the Frye rule that provided the
appropriate standard. The problem with applying that standard is that it
was very, very broad. I mean “consensus.” What does consensus mean?
Clearly it doesn’t mean every scientist has to agree. What is the relevant
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scientific community, particularly when the rule is applied to DNA
evidence that draws upon disciplines in several scientific communities —
population genetics, human genetics, biochemistry, biology. And also a
very important part of the evidence has to do with mathematical
probability theory. So I had the good fortune of having all of the cases
that were in the Superior Court in which there was an attempt by the
government to introduce this evidence. They were consolidated, and I
made the decision.
Mr. Granof: And how did that come to be that you got to be chosen for this?
Judge Kennedy: I think what happened was that in the Superior Court judges are assigned
to the various divisions for a period of time. And, as I recall, what
happened was I took over a calendar that had been presided over by Judge
Willie King. And his time in that division was just up. It had been on his
calendar, and it just came to me. I inherited it. It was a natural
inheritance of the case. But I recall that in order to make that decision as
to whether or not there was a consensus in the scientific community, I first
had to learn about the evidence. I remember I held a month-long hearing
during which I heard experts called by both the defense and the
government testifying about the different aspects of this evidence. I ended
up writing a very lengthy opinion.
Mr. Granof: Of more than 100 pages?
Judge Kennedy: It was more than 100 pages. There were basically two questions. The
first was whether the technique of comparing parts of the DNA from a
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sample with the known DNA of the suspected perpetrator of the crime was
a reliable way of determining whether there was, indeed, a match. And by
the way, terminology became very, very important because match did not
mean the same; it meant something else that right now I really can’t even
explain. But it had to do with the length of DNA fragments, and how
much they varied. If the length didn’t vary but so much — and this was
before the human genome had been actually sequenced — then it was
determined that there was a match. But if there was a variance of a certain
amount, then there was no match. So one question was about the
technique in determining whether there was a “match.” I found that, in
fact, there was a consensus in the scientific community that this was a
proper way of making this determination.
Mr. Granof: Now, one of the interesting things about your opinion in Porter is that it
reads like a biology textbook, but it’s broader than that. There’s an awful
lot of pure science described at a fairly complicated and sophisticated
level.
Judge Kennedy: Yes.
Mr. Granof: I think you once told me that you didn’t have a scientific background. So
how does a judge deal with these questions and come out with an opinion
which could be put in as part of a college textbook?
Judge Kennedy: It required an extraordinary amount of work. It involved reading an
extraordinary amount of material. As I indicated, I had this hearing that
took a month, where day in and day out I actually heard scientists from the
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witness stand, under oath, sitting right next to me, explain probability
theory. Explain the theory of population genetics and human genetics that
was applicable. So I heard these explanations. Frankly, we had excellent
lawyers on both sides.
Mr. Granof: I was going to ask you about that. You must have had very competent
counsel.
Judge Kennedy: We had excellent lawyers. The lawyers for the government were Pat
Riley, an Assistant U.S. Attorney, and Wanda Bryant. And for the
defense we had Ronald Goodbread and Frances D’Antuono. Ronald
Goodbread has just retired as a magistrate judge in the Superior Court.
After this case he was appointed a magistrate judge. Did a very fine job,
and he just retired, and now works for the Daily Washington Law
Reporter and actually summarizes the cases that appear there. But my
methodology in the Porter case was to, every day, come in and listen just
as intently and as focused as I could. By the way, it was just me. I had
one law clerk, but frankly the law clerk was charged with doing other
things. So I was there listening. And then at night going through, just
reading, reading, reading the many, many articles that the experts were
referring to — the studies. And it was just, as I said, quite challenging.
That’s why I consider it one of my defining cases because I did not have
to do that with other cases, and generally don’t. But that one required it.
So, I finally decided that, with respect to one element of this evidence,
whether there was a reliable method of determining when two samples of
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DNA, or a sample of DNA was compared with the DNA of the suspect,
whether there was a match. And I hasten again to add — and I’ll explain
why later — why “match” did not mean the same. There was some
significance to that. And I decided that with respect to the other aspect of
this evidence, which was to describe to the jury the significance of this
“match,” that that was not the subject of consensus in the scientific
community. Because what would happen would be, if there was a match,
the forensic scientist would say, The chances of our making a mistake and
that there was a coincidental match, which is to say that while it appears
that there was a match but there really wasn’t, was 1 in 1 billion. And you
would have statistics like that. And I determined, after hearing all of these
expert witnesses and after reading, that that did not find consensus in the
scientific community. Well, I wrote this long opinion, it was over a
hundred pages, that went up to the D.C. Court of Appeals.
Mr. Granof: After you wrote this opinion did anybody review it? I mean, other than
the court of appeals. Did you submit it to the lawyers in advance?
Judge Kennedy: No. No I did not. I did not have it reviewed. Actually, I had a law clerk,
Julie Adler is her name, and she wrote a very small part of it. Because
part of the opinion was to review what other judges have found in cases
involving DNA evidence. Again, this was a new technique, but there had
been other cases. And her assignment was to summarize what other
judges had found. The other parts of it I wrote. So, other than having her
review her section — and I think she did go over my section — the only
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other person that I asked to look at it was Judge Harriett Taylor. Harriett
Taylor was my best friend on the court. A wonderful, wonderful,
wonderful judge. She is now deceased. But her chambers were right
across from mine, and we were fast friends and we both had a love of
language that was very evident. And she read it over, and then I published
it.
Mr. Granof: And it really is a remarkable piece of work because it is so detailed and it
has so much science in it.
Judge Kennedy: Yes. Which is really very ironic because I may have mentioned that when
I went to Princeton I initially thought about being a doctor. But I took
some of the courses at Princeton and my performance on the science
courses suggested to me that my talents lay elsewhere.
Mr. Granof: So the opinion does validate, I suppose, the value of a good liberal arts
education?
Judge Kennedy: It really does. And I now will pay tribute to Professor Corngold at
Princeton. I don’t know if I’ve mentioned him, but Professor Corngold
headed the precept for a course that I took at Princeton; it was Modern
European Literature 141. And I’ll never forget my very first paper that I
turned in at Princeton. I did not do well. At the time Princeton had this
grading scale of 1 to 7. One received a 7 if one did not come to class. Six
was really failing. Five was failing as well, but not as bad as 6 and 7. I
remember getting a 4-minus on that paper, a 4-minus. And I remember
being absolutely distraught. Maybe that’s an overstatement. I wasn’t
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distraught, but I was very disappointed. I had done well in my high
school, and I was used to getting A’s to tell you the truth. And I
remember talking to Professor Corngold, and I’ll never forget him looking
me in the eye and saying, “Mr. Kennedy, your problem is that you don’t
know how to write.” And I felt like saying, “You want to be more
direct?” But he said something and did something which I will always be
appreciative of; he said, “But you know, I think I can help you.” And so
for about six weeks after that, after the regular class, I would stop off at
Professor Corngold’s office and one-on-one he tutored me in the craft, the
art of writing. And I must say I think I learned well, and right now to this
day I take a lot of pride in my writing and don’t back off from it at all. So
that 103 page opinion, I think, reflects some of the tutoring of Professor
Corngold.
Mr. Granof: Since you mentioned the craft of writing, do you find that you can just sit
down and write something, or do you find that it’s when you start writing
it really is the start of analysis and thought. That is, it makes you think
through the problem and the solution and where you’re going, and
sometimes when you have something and you think it in your mind, then
you set it down on paper and you say, “Well, this isn’t working.”
Judge Kennedy: What you have just said is absolutely true. I tell my law clerks all the time
that writing — you know, the work of writing — can be very demanding
because it does force you to write a topic sentence, and that’s what good
writing is all about. You first establish the context for what is to follow,
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therefore you have to actually think about, Well, what is the big picture
here? Because that is what is required. I don’t know about you, but if you
get a piece of writing and there’s just a lot of detail, I mean there’s just
detail after detail after detail, without there being this topic sentence, you
can’t digest it. You can’t understand it. Therefore, the writing requires
you to first put things in context and then every sentence has to follow,
relate to the context, and be the stepping-stone for what’s to follow. And
so you’re absolutely right. And there is a real art, there’s a real science, if
you will, there’s a real discipline that one must have in manipulating
language on paper and put it to the task of expressing what’s in your head.
And that is not so easy. I’m always asked, “Do you like to write?” Now I
don’t always answer every question that’s asked of me, but when I
forthrightly answer these questions — and I don’t ever lie, but sometimes I
don’t choose to answer — I say, “No, I don’t like to write.” I mean I like
to do a lot of things. I like to play tennis. I like good food. I like spending
time with my wife. I don’t like to write, but I love to have written. And
I’m going to tell you what that signifies is that the actual getting what’s up
here — and I’m pointing to my head — down there in a way that is
calculated, at best, for the reader to understand what was up here in my
head and now is on paper is an arduous task. Now, my brother loves to
write. Mark Twain, I suppose, loved to write. But for me I don’t love to
do something so arduous, but I love to have done it well.
Mr. Granof: It’s reading it at the end?
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Judge Kennedy: It’s reading it at the end.
Mr. Granof: After you’ve got it down?
Judge Kennedy: Yes.
Mr. Granof: And say, “I finally got what I want.”
Judge Kennedy: Yes, that’s exactly right.
Mr. Granof: I think you indicated they were a series of consolidated cases. These cases
were before other judges?
Judge Kennedy: That’s right.
Mr. Granof: And they basically assigned them all to you?
Judge Kennedy: That’s correct.
Mr. Granof: So the case ultimately got up to the D.C. Court of Appeals?
Judge Kennedy: It did get up to the D.C. Court of Appeals and something very interesting
happened. I have never been affirmed with respect to every factual
finding and legal finding, but nevertheless been reversed. Although that’s
not really what happened.
Mr. Granof: Well no, because there was an intervening event that you had, in fact,
anticipated.
Judge Kennedy: That’s correct. That’s right. What happened was that the introduction of
DNA evidence became so controversial, and I mean it was really very
powerful evidence. In some states, you know, people had been sentenced
to death basically on the basis of DNA evidence. The National Academy
of Sciences was asked to take a look at this. Actually, when I was writing
my opinion I knew that this was going on. And I did, as you point out,
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refer in my opinion to the fact that the National Academy of Sciences was
looking at this issue, and I did allude to it. And there was this intervening
study that was done, and the court of appeals said that there is reason to
believe that given the findings of the National Academy of Sciences —
how the National Academy of Sciences expresses the significance of the
match and determining how it is to be done — perhaps it can be said that
there is now a meeting of the Frye test. And it was remanded to me to
make this determination. And that remand continued my odyssey in this
area, because what happened is that I held additional hearings. The first
time I held a hearing, the hearing was about a week long in which I heard
from scientists and mathematicians. I ended up writing an opinion, but the
defendants reminded me that I had suggested that I would have even more
hearings before finally coming to a conclusion. And I ended up basically
withdrawing that first opinion. I was just very dissatisfied with the
testimony from all of these experts. These experts — on both sides — were
absolutely well credentialed, had excellent reputations in the field, and I
was hearing different things from different people. And even when
something was said that was a slight — how to say — spin on the
information, that left me really uncomfortable as to what the decision
should be. And in order to kind of resolve this thing to my satisfaction, I
decided that I would call upon a man by the name of Dr. Eric Lander, who
is the head of the Whitehead Institute in Cambridge, Massachusetts. He
was a biochemist, I believe. His name came to my attention because I
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read in a periodical some words by Dr. James Watson. Dr. James Watson
and Francis Crick won the Nobel Prize for discovering the helical
structure of the DNA molecule. And Dr. James Watson said that Dr. Eric
Lander was a person who knew more about this than anybody else in the
world. Oh, I’ve just remembered where I read this. It wasn’t in any
periodical, it was in Parade Magazine.
Mr. Granof: I think you refer to it in your opinion.
Judge Kennedy: It was in Parade Magazine. And, yes, the topic of the magazine was
“Who Are the Smartest People In the World?” One of the people who
was asked about that was Dr. James Watson, who had won the Nobel
Prize. And he had said, “Well, in my view, Eric Lander is the smartest
person in the world because he knows more about this very complicated
science of DNA than anybody else in the world.” I noticed in the article
that Dr. Eric Lander was a graduate of Princeton University. I also
noticed that he was a Rhodes Scholar. By the way, Princeton University’s
informal motto is “Princeton in the Nation’s service and in the service of
all Nations.” I was talking to my brother — I think I mentioned that I’m
very close to my brother — about this. And my brother says, “Oh, I know
Eric Lander.” My brother was a Rhodes Scholar and he says that he really
is as bright as Dr. James Watson says. He’s a wonderful guy. So I got the
idea to have Eric Lander be the court’s witness to help me basically
understand the nuances of the differences between the scientists called by
the government and the scientists called by the defense.
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Mr. Granof: I guess I’m a little puzzled because you had this report from the National
Academy of Sciences. Could you have rested on that and just said, “Well,
there’s a consensus. The National Academy says that.”
Judge Kennedy: I could have.
Mr. Granof: But you elected instead to really go ahead and make your own
investigation?
Judge Kennedy: Yes. I don’t really remember why it was, what my thinking was back
then, but I concluded that I had to do more. And so I called up Eric
Lander and he tried mightily to not have to do this. Obviously I couldn’t
pay him. We didn’t have any money to pay him. This man goes around
the world giving speeches at scientific conferences all the time. He’s a
very busy scientist. And he told me, “Judge Kennedy, I’m sorry. I would
love to help you, but I just can’t do it.” And then I just mentioned how I
too went to Princeton and started calling on school ties. And I said, “You
know, if it’s a matter of time, what I’m asking of you for this very
important matter, is two hours.” I said, “Can you give me two hours?”
And he says, “Well, you know, just to get down to Washington.” I said,
“What if we came to you?” He said, “What?” I said, “What if we came to
you.” Well, to make a long story short, I convened court in the Suffolk
County courthouse in Boston, Massachusetts, and we all went up to
Massachusetts, except the defendant, and I established some ground rules
about how much time Dr. Lander would be questioned. I decided that I
had complete discretion about how to do this, and so I did the initial
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questioning, and asked the questions in the manner in which I thought was
best calculated to get the answers that I needed. You know you can ask a
question all kinds of ways, and frankly I was tired of hearing the lawyers
framing questions in a way that was calculated to get an answer that is
supportive of their view with respect to this nuanced issue.
Mr. Granof: Which is, of course, what lawyers do.
Judge Kennedy: What lawyers do. I mean, absolutely. I don’t blame them for it, but I
decided that I had to do it, and so that’s what we did. And sure enough I
asked the questions. Then the lawyers asked the questions. I ended up
writing the second — I guess this would be the third — opinion in which I
ended up admitting the evidence and, very importantly, indicated exactly
how the evidence could be presented to the jury in terms of the probability
theories. There are some other interesting things. A fellow by the name
of Bruce Budowle — perhaps I’m mispronouncing his last name — was
head of the FBI’s laboratory, which was the premier crime laboratory in
the country if not the world, that was in favor of the introduction of this
evidence. Dr. Budowle had established the protocol for deciding matches
and probability theories, and what not. Budowle, himself, came up for
this hearing to listen in while Dr. Lander testified. After the hearing they
had lunch together, and it was from that lunch that Dr. Budowle and Eric
Lander ended up co-writing an article that appeared in Nature magazine.
It was either Nature or Science magazine. These were two of the
preeminent peer reviewed scientific journals in the world. There are
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probably more, but Nature and Science are two. I know I read about 40
articles in these two journals in coming to my decision that put this whole
issue to rest. So that was one of the outcomes.
Another interesting thing is that I held a hearing in Boston shortly
before the O.J. Simpson trial, and I remember getting a couple of calls
from Lance Ito, who was the presiding judge of the O.J. Simpson trial,
who wanted to know when I was going to issue my opinion because O.J.
Simpson had filed a motion to exclude the DNA evidence that the
government was going to introduce in its prosecution against him. You
know, of course, he was charged with murdering his ex-wife, perhaps his
wife, and Ron Goldman. And, indeed, that motion was based, I
understand, on my first opinion. Lance Ito got wind that I was about to
issue this follow-up opinion, and he wanted to know what was going to
happen. So I got a couple of calls from Judge Ito, and I ended up issuing
my opinion. And, if you recall, O.J. Simpson, after I issued my opinion,
withdrew his motion to suppress the identification and the forensic
evidence and attacked it from a different point of view.
Mr. Granof: That the collection was improper?
Judge Kennedy: The collection was improper and all of that. So, yes indeed, the Porter
case was a most interesting case.
Mr. Granof: And it went up on appeal.
Judge Kennedy: Yes. On appeal it was affirmed in every respect.
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Mr. Granof: So that really is just a fascinating case of the kind of work judges do, and
the fair amount of judicial creativity involved in getting expert advice —
the best, probably, that was available.
Judge Kennedy: Yes. Well, as I said, it was a most challenging case. I’m frankly very
pleased with the way I handled it.
Mr. Granof: Now, at some point, I guess around 1997 or 1996, there was a Democratic
president and Republican Congress, and you’re being considered for the
federal bench. How did that come about?
Judge Kennedy: I guess that the best way to explain this, you know traditionally when
there were vacancies on the United States District Courts the senior
senator from the state in which the vacancy occurred would make a
recommendation to the president of the United States and that was very,
very influential in determining how vacancies would be filled. As you
know, the District of Columbia does not have voting representation in
Congress, doesn’t have a senator. However, I think Jimmy Carter was the
first president to accord the District’s nonvoting delegate what is called
senatorial courtesy. Our nonvoting delegate was then, and still is, Eleanor
Holmes Norton. President Clinton also followed that practice. Eleanor
Holmes Norton did something which actually other senators were starting
to do, and that is instead of treating this like a personal perk to make a
recommendation to the president for judicial office, she established what
is called a Judicial Nominating Commission comprised of lawyers and
some lay people who would basically interview and consider people to
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recommend to her. She would receive three recommendations, and from
that number she would recommend some person to President Clinton.
Well, that’s what happened.
Mr. Granof: Do you have to apply?
Judge Kennedy: You have to apply. There were very specific requirements for the
application, and I applied. The process also involved my being
interviewed by this Commission. The Commission recommended me for
consideration by her. I understand there were two other people who were
also recommended. I don’t know who they were. I was then interviewed
by Eleanor Holmes Norton. I’ll never forget, by the way, that Eleanor
Holmes Norton’s chief of staff was Donna Brazile. I remember going up
to her office, being met by Donna Brazile, and told to have a seat. Then I
had a conversation with Delegate Eleanor Holmes Norton. I don’t know
how long afterwards that I learned that I had been recommended to the
president.
Mr. Granof: What made you decide that you wanted to be a federal judge? I mean, I
can think of a lot of reasons, but I’m just curious what was in your mind.
Judge Kennedy: I had been a judge on the Superior Court for 17 years. I certainly had
enjoyed it; I really did. But this offered an opportunity to do something
else, something different in the same field in which I was very
comfortable. I think that I appreciated that some of the decisions that are
made in this court have wider effect than the decisions that are made in the
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Superior Court. Frankly, I knew that the work here was very challenging,
and I wanted to undertake that challenging work. I think that’s the reason.
Mr. Granof: Do you recall anything about the interview with Representative Norton? I
mean, what was she interested in? What’s the sort of questions that you
recall?
Judge Kennedy: I don’t recall specifically any question that anyone asked me except one,
and I don’t remember the context in which this question came up. But my
wife and I, at one time, had hired a person to care for our child whose
immigration status was not such that she should have been able to work
for us. I don’t think she had a green card. She had applied for a green
card, but she didn’t have a green card when she worked for us. You might
remember back then there were people being considered for judicial office
who had hired improperly documented or nondocumented workers, and
who for that reason were not selected for judicial office. Zoey Baird, for
instance.
Mr. Granof: Yes, she was the Attorney General nominee, and she got in trouble
because she not only hired an undocumented person, but also didn’t pay
social security. That really did her in.
Judge Kennedy: My wife and I, by the way, always paid the social security taxes. Chuck
Ruff — Charles F.C. Ruff — who was the United States Attorney and a
very fine lawyer was being considered for a position, and I remember he
had a household worker whose papers were not as they should have been.
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Mr. Granof: I don’t believe that at that time there was any obligation to check on the
immigration status of the people you hired for domestic work.
Judge Kennedy: That’s right. And there was another woman judge in New York who also
had a problem.
Mr. Granof: I know who you mean. Kimba Wood?
Judge Kennedy: Judge Kimba Wood. And then, during my interview, in some way this
issue came up. I recall explaining what happened. And I recall that one
of the nonlawyer members of the Commission could not understand why
this was an issue, why the Commission was asking me about this, or why I
was explaining about this. They couldn’t understand why it was that I had
someone working for me — for me and my wife — who had not received
her green card, what that had to do with my qualifications and integrity to
fill judicial office. But I remember trying to explain what the issue was.
And I must tell you at the every end of this explanation, that Commission
member looked at me and evidenced that she still didn’t get it. But that
was the only specific thing that I remember. I presume that I was asked
questions about why it is that I wanted to do what I was doing, and so on.
Mr. Granof: Judicial philosophy?
Judge Kennedy: Judicial philosophy and subjects like that.
Mr. Granof: Of course, you had a pretty good track record.
Judge Kennedy: I did have a track record. I just recall having a very pleasant conversation
with Eleanor Holmes Norton, but I don’t recall anything that she said. I
will tell you something that happened that was absolutely heartwarming to
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me. And, of course, I was very, very pleased to finally be recommended
by her to the president and to finally be appointed. But the day after the
interview, I received a call from Donna Brazile. I don’t think that she
would mind my revealing this. She said, “I hope you get the
recommendation. I just want to let you know that I really very much
enjoyed the very short time that we talked.”
Mr. Granof: That was nice of her.
Judge Kennedy: It was very nice of her. When I had arrived for my interview with
Delegate Norton, she couldn’t see me right away so there was this 10
minute period when I just talked with Donna Brazile, who, as I said, was
Ms. Norton’s chief of staff. And the conversation went, “How are you
doing?” and then, “Where do you come from?” And I said, “I come from
D.C., but I was born in South Carolina.” And I said, “Where do you come
from?” And she said, “Oh, I was born in Louisiana.” And I said, “I love
Louisiana. My father was born in Louisiana.” She then asked, “Where
was your father born?” I responded that, “He was born in Chamberlain,
but he actually was reared by some aunts in two places, Baton Rouge and
Port Allen. And then his father basically took him away from his
mother’s sisters and raised him in New Orleans.” And then she just
started talking about her life in Louisiana. We just had a very warm
conversation. I don’t know if you’ve ever met Donna Brazile, but she is
just very, very charming and smart. So I was very gratified when the next
day she said, “I don’t know what’s going to happen, but I just want to let
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you know that I enjoyed our conversation and, I’ll tell you, I’m certainly
pulling for you.” And since Delegate Norton did recommend me, and I
was finally nominated and confirmed, of course everything turned out
beautifully.
Mr. Granof: What was the confirmation process like? You had to get through the
Senate Judiciary Committee, and was that headed by Senator Hatch at that
point?
Judge Kennedy: It was. Senator Hatch was the chair of the committee, and I’m trying to
now remember who was the ranking member of the committee. I believe
it may have been Senator Kennedy. But, before we get to that, there were
some interesting things that happened because I was recommended by
Delegate Norton to President Clinton, and back then that was pretty much
seen as tantamount to the nomination. As it turns out, the president didn’t
nominate me immediately. I never talked to the president, but I am told
by people on his staff it was because he was about to run for reelection for
his second term. This was just before the ’96 election. I was
recommended by Delegate Norton long before that, I think sometime in
1994 or 1995. Senator Dole ran against Bill Clinton in 1996. And
Senator Dole, when he announced on the floor of the Senate that he would
be running for president, indicated that his campaign would raise the issue
of the appointment of judges who were soft on crime. Well, sometime
before then I had been the subject of a complaint stemming from my
sentencing of a young man who had killed a baby.
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Mr. Granof: I think you had mentioned that in some detail in our last interview and
what a difficult case it was.
Judge Kennedy: Yes. It was a very difficult case. But, in any event, I was the subject of a
complaint by the Washington Legal Foundation and others, and I will
never forget the call that I received from the president’s office telling me
that the president was not going to immediately nominate me for this
position given the political climate. I was told that the president certainly
had every expectation of winning the 1996 election, and that when he did
so he would then appoint me. But he simply did not want to have this
controversy from nominating me, a judge who was the subject of a
complaint for being soft on a baby killer. And so that recommendation
languished for a substantial period of time before I was nominated. Now
as it turns out — it’s really interesting how things work out — after I was
nominated, and after I got a hearing, everything went very, very smoothly.
But I felt the need to get the support of at least one senator who would
kind of break the logjam. Back then, as there is now, there was a lot of
politics being played regarding who would get a hearing and who would
not. And after I was nominated by the president, no hearings were being
scheduled. So, rather than gnashing my teeth about it, I thought about
what I might do. And what I did was I had my family members from
South Carolina, where I was born, contact none other than Senator Strom
Thurmond. I don’t know if you know anything about Senator Strom
Thurmond, but one thing you might know is that he was a master
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politician. And constituent services is something that he prided himself
on. So I had family members, living in South Carolina, and they wrote a
letter to Senator Thurmond saying, essentially, “Dear Senator Thurmond.
We certainly hope that you will use your good offices in seeing to it that
our dear cousin, Judge Henry Kennedy, a very experienced judge who has
distinguished himself on the Superior Court, we hope that you will assist
him in finally being confirmed for the position of United States district
judge.” One of my cousins had been determined that year to be the South
Carolina physician of the year. Another of the cousins had been the South
Carolina educator of the year two years before that. Well, Senator
Thurmond got that letter, and I don’t know what happened. I can’t say
that he was responsible for my getting the hearing, but I’ll tell you this.
There was always a question as to who would actually be my out-front
backer. Certainly, Delegate Norton was going to make an appearance.
And there was discussion about, perhaps, Senator Leahy making an
appearance and saying some things on my behalf because he was a
Democrat. And, of course, there was Senator Kennedy. Well, as it ended
up, it was Senator Strom Thurmond who actually introduced me to the
Senate Judiciary Committee that at one time he had chaired. He
introduced me and said some very nice things about me. And I will never
forget Senator Hatch saying after Senator Thurmond introduced me,
“You know, Judge Kennedy, with an introduction like that from our
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esteemed former chair of this committee, Senator Thurmond, one would
say that you are virtually assured of being confirmed.”
Mr. Granof: That’s a fascinating story. Were you working with White House political
operatives?
Judge Kennedy: Yes. And to this day, by the way, the White House political operatives at
the time still marvel at what I did.
Mr. Granof: That’s what it took. You had your nomination because of what you did
and because you just happened to have family members who were well
known in South Carolina.
Judge Kennedy: Absolutely. It was, and is, in my view, crazy. Absolutely. That is not the
way things should be. Absolutely not. And I would hope that we find
some way to reform the system of confirming nominees for federal
judicial office.
Mr. Granof: I’m sure that you had to fill out a lot of disclosure forms. Probably
endless forms.
Judge Kennedy: Yes.
Mr. Granof: And submit every opinion you’ve ever written?
Judge Kennedy: Absolutely.
Mr. Granof: In addition, did you personally have to call on the members of the
Judiciary Committee?
Judge Kennedy: No, that’s not something that I did, and it was not suggested that I do it.
There is a division of the Department of Justice — at least there was at the
time — that was headed by Eleanor Acheson. One of the responsibilities
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of her office was to prepare the president’s nominees to judicial office for
their hearing and for the confirmation process. I understand that for
nominees to the Supreme Court it is standard that the nominees actually
meet with the senators at least on the Senate Judiciary Committee. But for
me, at least, that was not recommended.
Mr. Granof: Did you meet with Senator Thurmond?
Judge Kennedy: I did meet with Senator Thurmond just before the hearing.
Mr. Granof: Now he must have been in his 90’s.
Judge Kennedy: He was in his 90’s. I’ll never forget it. But we arranged to meet just
before the hearing. And we did outside in the hallway. I didn’t go to his
office. We just decided to meet outside in the hallway. And it was a very
brief conversation. It consisted of, “Well, good to meet you Judge
Kennedy. I’ve now read about you, and I’ve heard a lot about you.” You
know he had a real deep southern drawl. And he said, “Very glad to
support you.” I must say I especially remember one thing he said: “Judge
Kennedy, you have made an excellent name for yourself. I certainly hope
that you never do anything to taint that name.”
Mr. Granof: That’s interesting.
Judge Kennedy: Let me make one more statement about this. I do remember that
confirmation hearing, and I do remember a couple of things. One, I
remember that Orrin Hatch was most gracious. He was a Republican
chair and, frankly, during those times, particularly at that time, nothing
that President Clinton was doing found immediate favor with many
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Republicans. With me, Orrin Hatch was most gracious. I’ll never forget
his introducing himself to my wife and to my children. His questioning, I
thought, was fair. Each one of those senators, except one, I thought were
fair. They asked some tough questions about all the hot-button issues:
affirmative action, the death penalty.
Mr. Granof: It was not a pro forma hearing by any means?
Judge Kennedy: Oh no. It was not a pro forma hearing. There were three other nominees
who were sitting at the counsel table — we had our hearing together — but
the questioning of us was very tough. Oh yes, indeed. They were asking
some tough, tough questions.
Mr. Granof: For instance. What do you recall?
Judge Kennedy: What did I think about the death penalty for juveniles.
Mr. Granof: What did you say?
Judge Kennedy: I must tell you I don’t remember what I said. I suspect that I thought
about it and said, That’s a really interesting question. I don’t know how I
would rule on such an issue. It really would depend upon the challenge
and what was said. I would bring to that question the discipline that a
judge brings to every hard question. Some of the questions, frankly, were
not questions at all.
Mr. Granof: So, in essence, you evaded the question.
Judge Kennedy: Yes. But I had the sense that, again, all of the senators who were there — I
remember Torricelli, former senator from New Jersey was there; Jeff
Sessions, senator from Alabama; Orrin Hatch; Diane Feinstein was there;
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and I’m sure there were a couple other senators there as well. John
Ashcroft was there, and I got the sense that he really didn’t like me. But
this is only an impression because eventually he voted for me both out of
committee, and also on the floor of the Senate. Still, I got the sense that
he would have voted against me if he could have. But I was certainly glad
that there was really nothing that he could hang his hat on. He asked
questions of me in a way that I did not perceive to be very polite. All the
other senators asked questions by looking me in the eye and using a tone
of voice that I consider to be respectful. I can’t be specific in describing
what it was about his questioning, but again my perception, my sense, was
that it was not respectful. The way he sat.
Mr. Granof: Body language?
Judge Kennedy: Body language. And I’ll always remember that. I always remember as
well that he was the only senator that made me fill out a questionnaire
after the hearing. And, in my view, the questions that were asked were
not befitting. They were not questions that one would think a United
States senator would ask.
Mr. Granof: Really? Why?
Judge Kennedy: He asked me things that in my view are just silly. Such as, “Who is your
your favorite Supreme Court judge?” That was one. Another was, “What
one book or article you have read that most influences your judicial
outlook?” I don’t know how to characterize these questions other than I
just don’t think they were very apt. Who is my favorite Supreme Court
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justice? Well, frankly, I don’t have a favorite Supreme Court justice.
Why, if I did, what would it matter if I had a favorite? I haven’t met many
Supreme Court justices, so I don’t know who I think would be the
friendliest. Favorite? Are you asking the question, “Which Supreme
Court justice has articulated a jurisprudence that you most agreed with?”
That’s a question that I might think was appropriate. But, “Who is your
favorite Supreme Court justice?” “What book or periodical have you read
that has most influenced your judicial thinking?”
Mr. Granof: Did anybody vote against you?
Judge Kennedy: No. I was voted out unanimously from the committee, and a good friend
of mine gave me the Congressional Record of the roll call vote in the
Senate, and I got all votes of approval, except for several senators who
were not there. I got yeas from everybody, including Ashcroft.
Mr. Granof: That must have made you feel pretty good, and made your family feel
great.
Judge Kennedy: It did indeed. And it’s so interesting that I did not know when the roll call
vote would take place. I knew that I had been voted out unanimously by
the committee, but I did not know when the full Senate vote would take
place. One day I’m at the house — it was one evening — and I get a call
from Jim Feeley, with whom I play tennis. “Hello, Henry.” “Who is
this?” “Jim Feeley.” He says, “You’re being voted on right now.” I ran
to the television so I could see them vote. So that’s how I learned about
this.
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Mr. Granof: What did your brother think of all of this?
Judge Kennedy: Well my brother, you know, we are very, very close. And so he was very
pleased at the outcome because he knew that I would be pleased at the
outcome.
Mr. Granof: This is probably a good place to stop.
[This concludes Interview No. 6]