Abner Mikva Text of Interview Only (May 19, 1999)

INTERVIEW NO. 9
This is the ninth int?ryiew of Abner Mikva in the ta1cing of bis oral history as part of the
Oral History Project of the Historical Society of the District of Columbia Circuit. The interview
is being taken at Shea & Gardner by Stephen J. Pollak on Wednesday, May 19, 1999, at 10:20
a.m The persons present are Judge Mikva and Steve Pollak.
Mr. Pollak: Good morning, Ab. We’re beginning about 11:47 a.m Initially, I would like
to ask you – I know you have been reading your transcripts of the prior interviews that we did –
is there anything that you want to put on the record that they’ve put in your mind that you want to
get off your chest or say?
Judge Mikva: I don’t think so. I must say, I think you were very thorough in those earlier
interviews, and I think we went into probably sufficient length, maybe even more than necessary,
into most things. I can’t think of anything that is lacking.
Mr. Pollak: Okay. Ab, I think that what we’re in the process of doing is going over ten or
eleven decisions of yours that you put in fiont ofme that you thought reflected your
jurisprudence. We’ve done a number of them, and there are five or six left to go. So we’ll just
step into those and, as I did before, I will put the decision in front of you, to the extent that you
want it, and pose some questions. One of the significant rulings that you marked out came early
in your time on the appeals bench and was, of course, a nationally discussed decision. It went on
to the Supreme Court, and that is the so-called Airbag case, State Farm Mutual Auto Insurance v.
Department of Transportation, 680 F.2d 206. It was a panel of yourself and Senior Circuit Judge
Bazelon and Judge Edwards. You wrote the opinion with a short concurrence by Edwards saying
that, in respect to the grounds for concluding that the agency had acted in an arbitrary and
capricious way, he joined in those set forth in Part 3A of your opinion. You addressed a number
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of major issues after you set forth the background, including the setting out of the long history of
Standard 208; and then you addressed the scope of review issue and the arbitrariness of the
rescission. The issue that was presented to you was whether the rule looking toward passive
restraints that NHTSA had adopted was set for rescission in a reasonable way or in an arbitrary
and capricious way. Finally, you concluded with a discussion of the remand to the agency and
what the agency was to do. I have some questions for you, but I think initially you might have
reasons you’d like the record to reflect as to why you marked this as a significant opinion of yours
and what you think it reflects in your jurisprudence.
Judge Mikva: Well, as you point out, it was relatively early in my judicial career. It was
decided in June 1982, which was my third year on the bench or second year on the bench. I
always thought, let me say the good things first and then I’ll talk about the mea culpa parts. It did
reflect an important rule for agencies to follow as far as judicial review was concerned, although
there had been cases that sort of assumed, and agencies that sort of operated on, that principle.
After the Reagan election, the new NHTSA decided to repeal Standard 208. I always thought it
was interesting looking at it first politically and then jurisprudentially. In 1980, when Ronald
Reagan was elected President, the one mandate he had was to get “government off our backs.”
Government had seemed too intrusive. The Carter Administration seemed to pick up where the
Johnson and New Deal Administrations had left off, and there was just this reaction among the
body politic that government was too involved in everyday affairs. They were passing too many
laws dealing with too many things. One of which, of course, was that they were passing too
many laws on automobile safety then: speed limits, national speed limits, seat belts and so on.
Reagan was elected with that mandate. No question about it. Had he sought to get a repeal of
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some of the legislation that was passed during the Carter years and going back even further into
the Ford years and the Johnson years, he would have had overwhehning support within the
Congress even though the Congress was controlled by the Democrats. The Members of
Congress had gotten the message; people wanted government out. So, had Reagan followed a
political route, there is no question that he would have been very successful. And, indeed, in
those few areas where he did seek to repeal some of the legislation, safety legislation others had
passed, he got it passed. But he and his advisors decided to use a short cut. All the agencies
were now subject to new appointments. The Carter people were being replaced by Reagan
appointees. Instead of going through the troublesome route of getting Congress to approve
legislation and having all the backing and filling that goes on in the legislative process, the
Reagan Administration was going to do it by regulatory fiat. A lot of it had come on the books
originally by regulation; they were going to take it off. They were so hell-bent for election, his
regulators or his deregulators I should say, that they didn’t stop to dot the I’s and cross the T’s. So
what they did with this particular safety standard, 208, was to say, “Okay, we’re taking it off the
books; we’re repealing it.” They didn’t hold any hearings, not any meaningful hearings. They
didn’t take any evidence. They just said, “This is one of these standards that is way too intrusive,
the government requiring airbags and seat belts; and the manufacturers are telling us they’ll go
broke if they have to do all of that; let’s get rid of it.” So they repealed it. When it came up for
judicial review, the big legal point that was involved in the case was not whether it was a good
standard or a bad standard, whether automobile safety was a good thing or a bad thing, but how
does an agency go about undoing a rule that it has adopted. The standard we set down and the
Supreme Court upheld was that you undo it the same way you did it, with full hearings and full
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evidentiary support. You’ve got to have the same kind of reasoned decisionmaking in undoing a
regulation that you had in adopting it. You can’t just say, ‘Well, we had an election, let’s get rid
of the regulations that the last guys passed.” That part of the decision was upheld.
But it was early in my career, and I saw what I thought was a great opportunity, not even
to create a new standard, but to create a new way of talking about it, something called “legislative
gloss.” I don’t know if you remember seeing that term in the opinion, but we lawyers know that
there had been something called ‘judicial gloss” for a long period of time; judges put their stamp,
their imprimatur, on a piece of legislation and that judicial gloss then becomes a part of the
legislation. The interpretation is as if it were in the statute itself. I thought that it was equally
sensible that when Congress looked at a subject matter a certain n11mber of times and refused to
repeal it or refused to modify it, that created a “congressional gloss.” Congress had said, ”Yeah,
we looked at 208; we don’t want to repeal it; we don’t think that it was a bad regulation, so we’re
going to keep it the way it is and we do it by a vote; we actually voted down the repeal.” That’s a
congressional gloss, a legislative gloss; and I thought it was a good concept to acknowledge in
the law. As you know, I’m a creature of the Congress; and I thought that frequently Congress
does things simply by doing nothing. The Supreme Court didn’t agree, as you know.
Mr. Pollak: Putting it in terms of the subject matter at hand, which was the airbag
requirements, Congress had a number of times defeated the efforts to derail airbags and, was it
your view that in those actions, which didn’t culminate in a legislative bill that was signed by the
President, did you feel that the legislative gloss was tantamount to a mandate for airbags?
Judge Mikva: I felt that it was a message that was sent to the regulatory agency, that the
Congress meant what it said the first time around. Congress had passed the standard, this piece
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of legislation which gave NHTSA the authority to make these regulations; then there were efforts
made to overturn those regulations, and Congress defeated those. They didn’t pass and that
indicates that Congress agreed with the way the agency had been interpreting the statute. The
Supreme Court, and I have to say with the reason of hindsight that they were right and I was not,
said that when Congress doesn’t pass a law, all that means is that it didn’t pass a law. It’s like
when the Supreme Court doesn’t grant certiorari, it doesn’t tell you anything about the merits of
the controversy on which they refuse to grant certiorari.
Mr. Pollak: And that’s pretty much what the Supreme Court said about the Congress?
Judge Mikva: Yes.
Mr. Pollak: When it doesn’t do something, it doesn’t tell you anything.
Judge Mik:va: It just doesn’t do something. Right. I think it was Justice Stewart; no
Stewart had already left; it was probably Justice White, who even though they upheld the basic
decision, they vacated my opinion because there was that piece in there about “congressional
gloss.”
Mr. Pollak: Right. You spent pages 222-28 reviewing that legislative history. That is
where you were finding the gloss.
Judge Mikva: Right and again I.was, I had the benefit of having been a member of
Congress, and then knowing how to read a legislative history and knowing what Congress was
doing when they did all these things or didn’t do all these things. I quoted a lot from the
congressional debate, and it seemed to me that that was a perfect opportunity for me to express
my views.
Mr. Pollak: In preparing for this interview, I made notes saying that you reviewed the
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congressional purposes at pages 222-28 and my notes went on, “though no new law was enacted,
you concluded there was a.congressional commitment to crash protection devices for vehicle
occupants that the court ‘may not take lightly.”‘ And my question that I put down for you, and I
suppose you’ve answered it already this morning was, ‘Wasn’t this the determinative court ruling
in reaching the conclusion that you made?”
Judge Mikva: Not really, because the earlier part of the opinion and the basic remand
said, whatever you do, even had there not been all this legislative history, you still just can’t say,
“Okay, we’ve changed our mind; we don’t like that regulation we passed last year,” I’m talking
about the agency. ‘We’re going to repeal it.” If you’re going to repeal it, you’ve got to go
through the same reasoned decisionmakjng that you did in putting it on in the first place. That’s
the main part of the opinion, and that’s the part the Supreme Court upheld.
Mr. Pollak: And that survived, right?
Judge Mikva: That survived and is now important law; and, as I say, it isn’t really new
law, but it’s the first time the Supreme Court specifically had to grapple with that question, “How
do you repeal regulations?” It has become a landmark case in administrative law. So that part
survived, but, as I say, my hubris and my appetite for putting some new language in the
curriculum got in the way.
Mr. Pollak: You might have reached the same conclusion that a rescission must be
subjected to thorough probing and in-depth review, which were your words, even if there had not
been this gloss?
Judge Mikva: The long review of the legislative history really didn’t add to that first
principle. The first principle was that even if Congress had never looked at it again, once the
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agency has passed the regulation through reasoned decisionmaking, if they want to undo that
regulation, they have to continue to do reasoned decisionmak.ing. It’s not a startling concept, but
it had never been articulated before in a Supreme Court case. So, the l\TJITSA v. State Fann
remains a very important precedent. As you know, these important administrative law cases
always have a lot of political history to them and a lot of political aftermath to them This was an
important subject for the Congress. They had been dealing with it for a long time. It probably
divided the conservatives and the liberals as much as any other issue. Not just airbag safety, but
the whole question of how far government should get involved in protecting people sometimes
even from themselves: motorcycle helmets, speed limits, the whole bit.
Mr. Pollak: I have a question for you that seems to come right off of your last statement,
and I ask it as I ask all of the questions of you in a wholly respectful manner. I’m sure I don’t
even need to say that to you, but you mentioned that these great regulatory judicial cases reflect,
come out of dividing lines between, often between, liberals and conservatives. The question I
have for you is that last week there was a new great regulatory decision by a panel of the D.C.
Circuit called American Trucking Association v. BP A It struck down smog regulations. The
panel opinion, which I’ve only read about in the newspaper to this point, was per curiam The
majority was by Judges Williams and D.H. Ginsburg. Judge Tatel dissented, citing numerous
Supreme Court decisions to which he said the decision of the majority was contrary. Obviously,
the majority was striking down regulatory action, just as the majority, there was no dissent, in
your 1982 NHTSA case was striking down an effort to deregulate. For good or ill, the judges
that were supporting, or at least ruled, that the deregulation had to be readdressed were yourself,
Judge Bazelon and Judge Edwards, nominees of a Democratic president. The judges in the
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majority last Friday are nominees of President Reagan and the dissenting judge, Tatel, was
appointed by President Clinton. Do these decisions tend to affirm your statement that the
political dividing lines inexorably reflect themselves somehow in the way the judges come at
them?
Judge Mikva: In these ahnost unique kinds of cases, you know, for every case like State
Farm or like the BP A case that you recited, there are maybe 50 cases that don’t reflect those
interests that are at the very cutting edge of the divisions within our society. In most cases, the
agency is doing its line work and the court’s review is similarly line work, and we use the
standards that have been set for us, whether it’s Chevron or it’s “reasoned decisionmaking” or
whatev?r the term is, and those divisions within the society that reflect themselves, who
appointed the judge, etc. really don’t come into play. As you know, perhaps 90% of the cases
that come and are decided by even the U.S. Court of Appeals for the D.C. Circuit, a court with a
reputation for factionalism and a lot of divisions, even in that court, 90% of the cases are
unanimous because the decisions just don’t reflect those cutting edge issues. But when there is a
cutting edge issue like State Farm or the BP A case you described, then the basic philosophy, the
basic attitude of the judge, tilts that judge in how he or she comes out. It may not always be
decisive, you can’t always say, ”he’s a liberal; therefore he’s going to come out this way; she’s a
conservative therefore she’s always going to come out this way;” but it tilts them in that liberals
are generally more supportive of regulatory action and the idea that government is a legitimate
force in our lives, whereas conservatives tend to say government should stay out; only in the
more dire circumstances should government get involved. That division is a division within our
society; it’s a division within the Congress, and it reflects itself in the way the elections come out
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and therefore the way in which the President gets to appoint judges. Interestingly, though, you
can go just so far with that. general statement that I made confirming your suspicion, because if
you push it too far it doesn’t come out right. For example, it was Judge Bazelon and Judge
Leventhal who came out with a hard look doctrine which, in effect, said we’re going to look at
the agency decision with a very tough review because we don’t want them jumping too quickly to
regulate. We want to make sure they’re doing the right thing. That looks like it’s an antiregulatory
doctrine. And, indeed, when the first wave of conservative appellate court judges
came on, they tried to get rid of the hard look doctrine because it was too easy to interfere with
the decisions of the Reagan regulators and so on. But all that said is, “Well, we generally support
regulation, we generally support government involvement. We’re not going to let the agency just
run amok. We’re going to make sure that they’re doing it the way Congress told them to. We’re
going to give it the hard look.” What I’m saym.g is that the notion that you can define a judge a? a
liberal or a conservative and automatically predict how that judge will come out on the cases,
even the hard fought cases, is sometimes not true. Before we leave State Farm, I have lots of
memories about that case. It was the biggest case I had that year, perhaps one of the biggest
cases I had during my whole career on the bench It gave me a great deal of satisfaction that the
Supreme Court upheld my basic decision although they did not uphold the opm.ion. It was also,
at least in retrospect, amusing the way all of the political actors weighed in. For instance, the
Wall Street Journal, which was very opposed to all of these automobile regulatory plans going all
the way back to Presidents Ford and Johnson, when this decision came out it had an editorial the
next day; and the title of it was “Air Bag Abner.” I still remember that. [Laughing] They were
not very happy with it.
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Mr. Pollak: There’s a little fillip of history. The auto industry was a proponent of
rescission, and there was a.brief argument made to you in behalf of the industry by Lloyd Cutler.
Judge Mikva: Yes, it was a very effective argument. It didn’t carry the day. The auto
industry and the regulatory agency all played fascinating roles in how this finally got resolved.
You know, after the Supreme Court upheld my basic decision, the auto industry was faced with
the proposition that they were going to have to put in airbags, and they viewed that as very
expensive and a very unwise business decision. They didn’t want to do it. At that point, the new
Secretary of Transportation was Liddy Dole, appointed by President Reagan. She was a lot
smarter than her predecessors, and she understood what the Supreme Court had said and her
advisors told her. She figured out a way of getting around, not the decision, but getting around
the airbag problem So she told the manufacturers, ”Look you don’t want to put in airbags? I’m
going to set up a standard which says that if you come up with another safety device as good;
namely seat belts that really work, and you get the states to direct them since we can’t, but if you
make enough states require seat belts as a condition of driving, traffic safety, then I will postpone
the airbag regulation for a number of years.” So all the automobile companies which had been
the biggest lobbyists against seat belt laws in the states, that’s how I first got involved in this
whole subject matter as a policymaker way back when I was a state legislator, flipped around and
instead of being against seat belts they went into their state legislatures and they were for seat
belts. And since the consumer groups are also for seat belts, almost all the states passed
compulsory seat belt laws which require drivers and other people in the front seat to wear their
seat belts while they’re driving. As a result, Secretary Dole postponed the effective date for the
automobile companies to put in airbags. By the time that the effective date came up, by that
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time, competitive conditions were such that they wanted to put in airbags because automobile
purchasers were demanding them
Mr. Pollak: It’s a pretty instructive bunch of history because in the end everybody, it took
about 30 years, but in the end the greater use of seat belts, the airbags, are all here …
Judge Mikva: Everybody can point to their pet principle as what carried it out. For
instance, my friends at the University of Chicago say, “See, the free market worked. If you’d
only given it enough time, the automobile companies ultimately came around to putting in
airbags because that’s what the consumers wanted.” But, obviously, there were a lot of traffic
fatalities during that long period and if it hadn’t been for regulations like 208 or some of the
others, who knows how many more deaths there would have been. So, it’s a fascinating piece of
political history.
:Mr. Pollak: This was early in your career on the bench. I was interested that the opinion
had 47 footnotes. Do you want to comment on it? When you look at it now from 1999, even
though you came to the conclusion that the footnotes were better gone, would you say in this
decision, “Well, they had their function”?
Judge Mikva: No. If I had had my policy in play then, even as early as 1982, I might
have resisted the temptation to go off into these byways of “congressional gloss.” One of the great
advantages I found of not using footnotes is that it forces the judge and his clerks to look at every
subject and say, ”Now is this important enough to put in the body of the opinion, then let’s put it
up there and explain why it’s here and what it has to do with the rest of the opinion. If it isn’t,
let’s not relegate it to a footnote and say, well, we don’t know that it’s important enough or not,
put it in a footnote. What difference does it make?” This is what I did there. There are several
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things that are in footnotes that I was kind of showing off my expertise with legislative history,
the fact that I knew what the legislative arena looked like. Now if I had had to make the decision
to put those up in the body of the opinion, I probably would have said, ‘1t’s not worthy, it’s just a
little “Abner gloss” and shouldn’t go in there.” Maybe it would have gotten me to the point
where I would have said, ”Do I really want to get into this congressional gloss or do I want to
stick to what is the basic point of the opinion and that is that they didn’t engage in reasoned
decisionmaking.” I don’t know. All I’m saying, in retrospect, it confirms that footnotes are a
dangerous device. Incidentally, it is one of the opinions – the reason that both Justice Breyer and
I both stopped using footnotes is that he clerked for Justice Goldberg and I had been a former law
partner of Justice Goldberg and we would have lunch with Arthur Goldberg, Breyer and I, once
in awhile we both were on the court, Breyer and I, and Goldberg would sort of critique our style,
critique what we were doing. He was lecturing us about footnotes, that we both used too many
footnotes. The Airbag case was one that he was familiar with because it had gone up to the
Supreme Court and gotten a lot of publicity and he, I don’t know if he had read the opinion or just
asked me about how many footnotes were there, and I had to allow that there were a lot of them
“See,” he said, “that’s the kind of trouble you get into. If you hadn’t used footnotes, then the
Supreme Court would probably have just affirmed the opinion and wouldn’t have made all that
big noise.” It was shortly after that lunch that Breyer and I decided we wouldn’t use footnotes
anymore. So the opinion played a historic role in changing my style because it just gave
Goldberg an opportunity to lecture me about it. Footnotes are a bad idea. Breyer still doesn’t use
them Any opinion I’ve seen of Justice Breyer, I don’t think he uses footnotes.
Mr. Pollak: The next case is a decision called Ferebee v. Chevron, 736 F.2d 1529, a 1984
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decision of yourself for a court of Wald and Bazelon. The case was one where the court was
unanimous. It was an agricultural worker, you will recall, who had worked for the government
and had had long-term skin exposure to a herbicide or insecticide called Paraquat, which was
followed by pulmonary fibrosis leading later on to his death He sued, and after his death his
family carried it on and won a jury verdict of $60,000. The issue in front of you was whether the
evidence was sufficient for the case to have gone to the jury?
Judge Mikva: That was one of the issues. It’s the issue that causes a lot of people still to
read the case. Probably the issue that was most troublesome was the …
Mr. Pollak: Was the preemption, that’s right. The question was whether the federal
warning rules or laws preempted the field from state regulation. Your opinion had the federal
government mandating a warning on the label. This manufacturer had had the federally
mandated warning and was saying, ‘Well that is all, that should protect us from damages.” You
ruled that it didn’t protect them
Judge Mikva: That’s right. The case was interesting. The first issue you talked about,
the standard of evidence as to what can go to the jury, is still being fought about. The most
recent Supreme Court case, which modified the D’Alembert rule, I think I referred to it in here,
might or might not have dictated a different result as far as whether or not this case could have
gone to the jury on the evidence that was presented. On that question, this case wasn’t really that
important because there are lots of cases where the appellate court says, ‘Well, yes this is
sufficiently well established so that it could go to the jury. This is speculative and we won’t let it
go to the jury.” Even the Supreme Court in its most recent enunciation of the doctrine said,
‘Well, the trial judge has to be allowed some discretion here. We can’t lay down some black and
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white rule that will always tell you what kind of evidence is admissible and what kind is … ”
Mr. Pollak: You didn’t select this opinion for that issue?
Judge Mikva: No. It’s the preemption issue which is much more signilicant and one that
the Chevron Company had a great deal of difficulty with
Mr. Pollak: I bet you they thought they had to prevail on that issue.
Judge Mikva: They were so unhappy with the language of the opinion and didn’t quite
know what to do. As I recall, they tried to en bane the case, and there weren’t enough votes to en
bane it. I’m not sure about that. Then they took a long time deciding whether or not to seek
certiorari on the case. Were they better off just having one court of appeals decision which was
slightly off the mainstream on this preemption question or should they get certiorari denied? Or
worse yet, the court might take the case and really come down with a broad rule on preemption
which would hurt them My feeling about preemption is that in a federal system– I think I
applied this as consistently as I knew how to all the time I was on the court — in a federal system
where we pride ourselves that we have these competent jurisdictions that are free to legislate in
all these areas, torts and contracts and so on, that Congress should be very clear when it passes a
law that says, ‘We don’t want the states in this field. We are preempting it. We are going to take
it over completely.” What I said about FIFRA here was that all Congress had said was that the
manufacturers have to put this label on. It did not say “and we repeal state court law and we
don’t want the states to be involved in this.” Now Maryland tort law said that even with the
warning, a company could be negligent and be responsible for causing somebody’s death Just
because you tell somebody that there’s a hole doesn’t mean that you aren’t liable if somebody falls
in that hole. That, basically, is what the FIFRA warning was. It said, this is a label that has to go
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on there, but it didn’t immunize the companies from state tort law which said, if you put a drug
on the market, put a substance on the market that causes somebody’s death, even though you’ve
warned that person, that doesn’t mean you are not liable for that death.
Mr. Pollak: One of the interesting issues that’s so very current today and always is, I
guess, is states rights. Would you say this was a states rights decision?
Judge Mik:va: Oh absolutely. I came out of ten years in the state legislature a firm
believer in states rights. I think that wherever the state can do something and wants to do
something, it should be allowed to do it, should be encouraged to do it, unless there are some
overwhehning reasons why the state’s doing it will interfere with the national good. But, states
rights to me aren’t the state saying I reserve the right to do this. I’m not going to do it, but don’t
you do it either, such as civil rights or education or voting rights. That’s not states’ rights to me.
The notion that the state is free to act where it wants to, I think, is very important, and Congress
should use its preemption power carefully and be very specific. Now, Congress could have said
in FIFRA, “In addition to the label, we direct that all state tort remedies are repealed and that the
only applicable law shall be this federal law.” They didn’t say that. So, therefore, as far as I was
concerned, yes, the label said that was all the company had to do as far as labeling is concerned,
but that didn’t mean that the company was off the hook as far as state tort law is concerned.
Mr. Pollak: The company, you recounted that Chevron in arguing preemption grounded
its argument upon a section of FIFRA which provides that a state “shall not impose or continue
in effect any requirements for labeling in addition to or different from those required under this
subchapter.” I guess, Chevron argued, you recount further, that a damage action based on
inadequacy of a label has a regulatory aim to assure that adequate labels are used, and that is
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precisely this regulatory aim that FIFRA explicitly preempts. I guess you pretty much answered
that already.
Judge Mikva: What I said was that all the F1FRA did was say that this is the label and the
state can’t order a different label. That doesn’t mean that the rest of state tort law, which is only
applied here doesn’t still …
Mr. Pollak: It was a little unclear to be, Ab, whether Chevron could have put on
additional warnings.
Judge Mikva: Probably not.
Mr. Pollak: Probably not?
Judge Mikva: Probably not. Had that been what I told them they should have done, that
that was the way they could have avoided their liability, that probably would have caused more
of a collision with FIFRA. That would have been saying, “All right, now the state is requiring
additional warnings over and above FIFRA.” What I said was that putting that drug on the
market, even with the warning label, didn’t protect them from the fact that putting it on the
market may have been a negligent act under state tort law. Just because under F1FRA this is the
label you must use doesn’t mean you should put it on the market at all. At one point, I forget
whether it was in the rehearing or in the original briefs, I don’t remember whether I covered it in
the opinion or not, Chevron was complaining that it sounded almost like absolute liability.
Mr. Pollak: Chevron said, this strikes me as pretty tough, “Chevron can comply with
both federal and state law by continuing to use the EPA-approved label and by simultaneously
paying damages to successful tort plaintiffs such as Mr. Ferebee.”
Judge Mikva: It’s like the smoking label. When Congress, and remember I was in
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Congress when this happened, at the behest of southerners who thought this was a way of
immunizing the tobacco companies from state tort liabilities, put on the label warning, the
Surgeon General has found that smoking may be dangerous to your health, that doesn’t immunize
the tobacco companies from being sued in state courts by the states for the damage that they did
as a result of people smoking. It’s the same principle. Warning somebody that they’re going to
die doesn’t necessarily allow you to escape liability.
Mr. Pollak: The next case, I’m going as a matter of time flow, is Hammantree v. NLRB,
894 F.2d 438 (D.C. Cir.). This is a decision as to whether a provision of the NLRA had required
the National Labor Relations Board to address and decide an unfair labor practice charge directly
or whether it could leave the matter to go to a private arbitration, which was called for by the
collective bargaining agreement. You held, as I read it, for yourself and Judge Gesell that the
statute called upon the public body, the NLRB, to decide the issue. Hammantree was claiming
that for his labor union activity he had been retaliated against and that that was an unfair labor
practice. Your colleague, Judge Wald, dissented and, essentially as I read it, said that the NLRA
provision was sufficiently ambiguous, that Chevron called upon you to follow the NLRB’s
decision as to how to apply the collective bargaining provision. I note that the court in full
vacated the opinion and set for an en bane. I don’t know what the subsequent history is.
Judge Mikva: They reversed me. Since Judge Gesell was not on the court, the en bane
court, I ended up writing all by myself. I couldn’t even persuade Judge Edwards that I was right.
I thought it was important, one of these cases that, in some respects is very fact specific and,
therefore, may not be quite as important as I thought it was at the time. But, I thought it was
important because it seems to me that when Congress says this is important enough to put under
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a statute and give the authority to a public body to resolve these disputes, in this case the
National Labor Relations Board, I think that suggests that private action shouldn’t be allowed to
trump that public action. What I felt happened here is that the Teamster, I think it was a
Teamster Union …
Mr. Pollak: It was the Teamsters.
Judge Mikva: The Teamsters Union had decided to go after this fellow, Hammantree,
and had somehow persuaded the Labor Board to let the collective bargaining agreement resolve
the dispute. Under the collective bargaining agreement it would go to arbitration. It was very
stacked on the arbitration panel. I hope I wasn’t looking at the final result here, which I think was
going to be very bad for Mr. Hammantree. \Vhat I did feel was important though was that
Congress had expressed itself in saying there is a public concern about these kinds of disputes.
They should be resolved by the Labor Board. I don’t think it’s easy. I didn’t read the statute as
loosely as Judge Wald did, and as ultimately the full court did, in saying, “Well but the Labor
Board decided that they’d rather let ti?is be handled by private arbitration rather than second guess
them” As I recall, Judge Wald used the Chevron doctrine as a reason for saying we shouldn’t
interfere with the Labor Board’s decision. When a regulatory agency, when a public agency,
abdicates a responsibility that the Congress has given to them, I don’t think that’s entitled to any
deference under Chevron or anything else. I’ve always felt that the courts should look closely at
the regulatory agency’s interpretation of its own mandate because, as far as I’m concerned, that’s
the one place where if the court doesn’t review it, pretty soon we’ll have the Treasury resolving
all military disputes and the military resolving all the labor disputes. And, clearly, the basic
mandate, the decision of what kind of disputes the agency should be handling is something that
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the court should be looking very closely at in the statute.
Mr. Pollak: Was this part of a Reagan-era deregulation thrust?
Judge Mikva: I thought it was a little bit. Obviously, I could not persuade even my likeminded
colleagues to agree with me. It may well have been that I got stubborn because of the
facts, which I found particularly compelling. This was the Teamsters using its heavy-handedness
at its worst against one lonely dissident Teamster. I don’t know that the Labor Board would have
reviewed it any more favorably than this private arbitration, but, at least, the Labor Board wasn’t
stacked in advance the way the private arbitration was. As I recall, in the private arbitration, the
arbitrators were appointed solely by the Teamsters. That’s hardly an independent body. I thought
it was reflective of the, you know, ”let’s let the private sector do what they want here and keep
government out of it.” Again, if you want to relax the National Labor Relations Board
jurisdiction, then change the statute, don’t change the regulations.
Mr. Pollak: The court voted to hear the case en bane. Did it hear it? And reversed it?
Judge Mikva: Yes, they heard it and reversed it and, as I recall, I ended up dissenting
alone because even Judge Gesell, who’d agreed with me on the panel opinion, was not a member
of the en bane court. So I was all alone.
Mr. Pollak: Well, it’s very manful of you to select it for the history.
Judge Mikva: It shows either that I was a very small minority and I was right, or that I
was very stubborn. One or the other. [Laughing]
Mr. Pollak: Next, you selected three more cases, all of them argued in 1993, and two of
them decided in that year. So these are late decisions of yours, and I’ll take them in order. The
first was called Sweet Home Chapter of Communities for a Great Oregon v. Babbitt; and it
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concerned the Endangered Species Act. It’s 1 F.3d 1, and it was a decision of yours with Judge
Williams and a dissenting opinion in part filed by Judge Sentelle. The question was whether the
regulation defining harm to endangered species was broad enough to include habitat modification
which was argued to hurt the species. There was also a review of a regulation of the Department
of Interior which automatically extended the protections for endangered species to threatened
species, and both of those regulatory interpretations were under challenge by the industry. I
suppose it was a logging concern. What led you to select that decision, and how does it fit into
your jurisprudence late in your career on the D.C. Circuit?
Judge Milcva: It’s my feeling that when Congress gives an agency the discretion to pass
regulations to achieve a particular end, the agency should be given broad discretion and should
be upheld in its efforts to achieve that end. You ought not crimp its authority by using the words
in the narrowest sense rather than in the broadest sense. In a sense, as far as I was concerned, the
original decision, which Judge Williams concurred in, was really carrying out Chevron in the
original purpose for which Chevron existed. Even before Chevron came down as a case, most
Courts of Appeals had said we will defer to the agency in their field of expertise. They were the
ones who were told, ”Protect endangered species.” Here are the standards that they were
supposed to use. We should give them great discretion in applying those standards to achieve
that end. In doing so, it seemed to be very simple, it seemed to be reasonable to say, “Yes, the
agency was right to say that habitat was one of the ways that we need to protect endangered
species as well as any others that have been placed in the statute.”
Mr. Pollak: The statute proscribed actions to harm the species, and your ruling said it
was reasonable to read harm as taking habitat action or action in the habitat …
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Judge Mik:va: That would cause the harm This was not an unreasonable extension or an
extension at all of the agency’s basic authority to protect endangered species from harm If you
destroy the place where spotted owls can live, that’s the same as killing them That’s what the
agency basically said. Now, one of the reasons I pulled out the decision is that this is one of
these very divisive questions within the society, within the court, where on rehearing Judge
William was persuaded to change his mind; and he joined Judge Sentelle in an opinion reversing
the agency and saying, “No, you can’t include habitat as a measure of harm” And I ended up
dissenting. The case went up to the Supreme Court, and the Supreme Court affirmed me,
affirmed the agency.
The Supreme Court’s review of this decision is in most administrative law case books
now because it’s an example of how the Supreme Court views this issue of administrative agency
discretion and how the Court views the agency’s looking at a statute and trying to carry out the
basic purpose of the statute without holding it to some very specific, narrowly defined words. It
also, as you noticed, that was the first opinion in F.3d, but it was vacated, [Laughing], because on
rehearing Judge Williams ….
Mr. Pollak: I’m pleased for the record that you brought out the subsequent history
because it provides a very interesting picture of the judicial review of the administrative action.
Judge Mikva: One other thing that, this probably was more on the rehearing than in the
original opinion, Judge Sentelle was very hooked up on a doctrine noscitur ? sociis. I don’t
remember the full …
Mr. Pollak: Yes, the Latin phrase.
Judge Mik:va: … the Latin phrase, the canons of construction, and like all canons of
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construction, you can apply it anyway you want to. He applied it to say that habitat wasn’t the
same as the other kinds of harm that were described in the statute, and therefore, habitat couldn’t
be a part of harm That’s what noscitur ? sociis said. Judge Williams, the first time around,
agreed with me because when we looked at the legislative history, I thought it was pretty clear
that Congress had, to the extent that it was considering habitat at all, clearly wanted it covered.
When we went back on the rehearing, he insisted that the legislative history didn’t reflect that
and, in any event, Congress didn’t use the word habitat and habitat is not associated with harm
and, therefore, the agency couldn’t extend it to habitat.
Mr. Pollak: Well, that was something I was going to put in front of you. The statute,
your opinion related, contained a prohibition on taking an endangered species and the statute
defined, and here’s where Judge Sentelle was focusing, it defined take in a series of words, as
statutes so often do, and it said to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or
collect or to attempt to engage in any such conduct. I suppose that various judges split,
ultimately the Supreme Court affirmed your position, to put across whether harm partook of the
other words which had almost a constant meaning of a person doing something to the animal?
Judge Mikva: Physical hurting, physical involvement of some person with the animal.
And as I said, the legislative history showed that Congress really was trying to protect these
species, endangered species. You would do just as much harm to a spotted owl if you shot it as if
you cut down its nest.
Mr. Pollak: There is an aspect of your describing the way you came to a case like this
that I want to inquire about. More perhaps than some judges, when you approached some of
these regulatory decisions and maybe other decisions, you felt that some of the disputes over
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agency action really should have been addressed to the Congress? You said Congress had set out
in the statute a remedy and had put the agency in motion, and now the court was being asked to
step in. You appeared to be thinking, “Well, the Congress, the legislature continues to sit;
disputes over the agency’s action is something that ought to go back to the Congress.”
Judge Mikva: Yes. Basically, there was much ado made about the Chevron case when it
came down. The Chevron doctrine as to how a court should review agency action. I’ve never
found Chevron quite as useful a tool as other judges did. First of all, because I didn’t think it was
that new. Chevron just basically said what you just said, that is, that the court should give
deference to an agency decision because it’s the Congress that set the direction for this agency to
go in and, if somebody doesn’t like the direction, go to Congress and tell them to change the
direction. That’s where the direction was set in the first place. As long as the agency is acting
within its designated sphere of influence. So, as far as I was concerned, Chevron didn’t do
anything that dramatically new about the doctrine and, in some respects, it almost tried to
mechanize it by step one, step two, and it did some harm because, basically, I always felt that a
judge’s role here was not to treat these reviews of agency actions in some kind of a mechanistic
fashion, but to remember that the basic doctrine is Congress is the first branch of government.
They make policy and they delegate to the agency how to carry out this policy, and the court
should not superimpose its views on either the basic policy itself or the direction that the agency
has taken if it’s consistent with what Congress told it to do. It’s not our job.
Mr. Pollak: Ab, did your approach to this case, after 14 years on the bench, differ from
your approach when you came on? It actually has strains that aren’t so different from the State
Farm case.
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Judge Mikva: No, I don’t think my approach changed. I think I may have learned to be a
little more temperate about my effusive enthusiasm for congressional action and inaction such as
in the State Farm case. I still think that, to my mind, the first role of a reviewing court when it’s
looking at any statute, particularly a statute that involves an administrative agency, is to say,
“Can we find from the words of the statute what it was that Congress was trying to do?” Our
responsibility is to carry out faithfully that charge, that policy decision. As you know, the words
like habitat aren’t always clear, or harm, aren’t always clear, so that the court can apply this
mechanistic approach That’s why I always felt that it was legitimate and necessary to look at the
legislative history when I was doing that back in State Farm cases as recently as ….
Ivir. Pollak: You were moved by the policy of what Congress was trying to accomplish?
Is that right?
Judge Mikva: Yes. And that, I think, is the court’s responsibility.
Mr. Pollak: You had no footnotes, I notice. None at all.
Judge Mikva: No footnotes. None at all. I think in about 1986 or thereabout I stopped
using them
Mr. Pollak: The next case in time is a homosexual case, Stefan v. Aspen, 8 F.3d 57. The
midshipman, Stefan, as related in the case, had stated that he was a homosexual; and he was
forced to resign under a regulation which had a number of different provisions, the last of which
was that the member of the military has stated that he or she is a homosexual, unless the agency
found that the individual is not a homosexual. Your opinion was written for a court of yourself,
Wald and Edwards. There was no dissent, but then the case was en banced. Your decision was
reversed. The ruling was that the individual was properly forced to resign by the Navy. What
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does that … ?
Judge Mikva: Let me line up the history first. The en bane court, which I think I sat on
although I was not there for the decision because I had left the court by that time, but the en bane
court in its decision for a divided court overturned my decision and authorized the Navy to
cashier this gentlemen. As I recall, the en bane court divided something like 6 to 3 or 6 to 4
maybe. I view my Stefan opinion as one of the best I ever did because I thought I was being very
careful. Oh, and I should say that the en bane decision was not appealed by anybody or Stefan. I
don’t know whether he didn’t seek cert. or whether he did and didn’t get cert.
Mr. Pollak: I wonder if there was some recounting in your opinion that there had been
later adopted by the military the “don’t ask, don’t tell rule” and that rule was not at issue in the
Stefan case?
Judge Mikva: That was not at issue. That rule was adopted subsequent to the action that
was taken against Stefan. It was not involved in this case at all. There have been other decisions
about “don’t ask, don’t tell,” which have sort of upheld the policy. The nnplementation of that
policy has been all over the lot. This was, in some respects what bothered me about the way the
Navy behaved here. The Navy went out of its way to punish Midshipman Stefan and discharge
him under less than honorable conditions, to force him to resign. It went out of its way to
achieve this result not because of anything Stefan did. The record was absolutely clear that the
Navy was not alleging any misconduct on Mr. Stefan’s part. This was snnply because of what he
believed, what he said. He said he was a homosexual and thought of himself as a homosexual.
The Navy wasn’t accusing him of having assaulted anybody or having embarrassed anybody or
having propositioned anybody. What the Navy accused him of was, it asked him, “Are you a
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homosexual?” And, he said, “Yes sir.” And the Navy said that’s it. The last line of the opinion,
as far as I’m concerned, was a basic reason why I thought they were wrong. America’s hallmark
has been to judge people by what they do and not by who they are. This decision on the part of
the Navy to cashier Mr. Stefan was based not on anything he did, but on who he was. He was a
homosexual by his own standards. There’s a little bit of background to the case. Mr. Stefan had
been an honors midshipman. He was a platoon commander. These are two of the highest honors
given a midshipman. I have met him since the time I saw him sitting in the courtroom He looks
like the all-American boy: clean cut, crew cut, straightforward. After he was cashiered, he went
to law school and is now a member of our profession. He’s a lawyer. He explained why he
answered the question at the time he did and why he felt that he had to answer it. He said,”You
know, I’ve been told during my entire career as a midshipman that honesty and integrity are
important to being a good naval officer, so when I was asked, ‘Are you a homosexual?’ I had to
answer honestly, I had to tell them yes. Those were my inclinations.” I think that, as a society,
this is one of these issues that we continue to grapple with very unsatisfactorily. The “don’t ask,
don’t tell” policy is not working very well as far as young people are concerned in their relations
with the military. Steve, this is a generational problem I have to say that I came by my
understanding, if I have one, of acceptance of homosexuals in the gay community with my head,
not with heart. I still am uncomfortable about the idea of gays getting married or the idea of gay
people kissing in public. It is something that I grew up with and I had great trouble overcoming
that. My children would tease me, and I give them credit for being so enlightened. The fact is I
am just as homophobic as everybody in my generation. I suspect that probably deep down I am
and I’ve resisted it. My generation and the generation that would have made up the majority of
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this court, and apparently still makes up the majority of the policymakers in the Congress, have
an attitude about gays that.is just inconsistent with the way the next generation perceives gays
and gay behavior. One of the background pieces of this — I was then Chief Judge at the time this
came up — the trial judge who heard the case, he is now deceased, used the word “homos” during
the trial. He said, ”Homos this or homos that,” and there was a big outcry. The LAMBDA
Society was upset. Somebody filed a judicial complaint or threatened to file a judicial complaint.
Chief judges did not like to use the judicial complaint process, particularly while the case wass
going on, but on the other hand the conduct was indefensible. That was an offensive word. So I
went to see the judge involved and I said, “There’s this complaint. I think it could probably be
resolved, or this threatened complaint, if you simply make it clear that you made a mistake using
that word and apologize.” He said, ‘Well, okay, but I didn’t know there was anything wrong with
the word. It sounds like a perfectly good word to me; it’s short for homosexual, what are they all
so upset about?” I said, ‘Well, Judge, people are entitled to be called what they want.” He said,
‘Well, nobody told me that this is a bad word.” I said, “Clearly, the outcry makes it clear that it
was. You wouldn’t have used the word ‘nigger,’ Judge, would you?” He said, “Of course not.
People have told me that that wasn’t the right word.” So I think this is a generational problem
that Stefan reflects which, hopefully, will go away in the next era. I hope so.
Mr. Pollak: Ab, there was discussion in the opinion, I’m not sure you want to say more
about it, of what the standard of review was. It was an equal protection case. The question was
whether you gave it rational basis review or whether you gave it close scrutiny. I don’t know
whether you want to comment on that aspect of it. Did it have to do with whether homosexuals
were a protected class?
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Judge Mik:va: There were two opinions. There was an opinion of our court which had
been written some years before which had specifically said that homosexuals were not a
protected class. That Court’s opinion was, of course, binding on us. So, clearly Mr. Stefan was
not entitled to any special protection; and then the Supreme Court had come down with this
opinion, Bowers v. Hardwick, so that we clearly could not review the agency’s action of Bowers
v. Hardwick. The D.C. Circuit case was Dronenberg v. Zesch, which came out in 1984. Clearly,
there was no way we could give Mr. Stefan any kind of extra protection in the standard of review
because he was a member of a suspect or quasi-suspect class. Such membership would have
entitled us to give the government action heightened scrutiny under equal protection review. So
we had to give it the rational review test, which we did. \Ve said that there were no rational
reasons for the agency acting the way it did, which meant we also had to go through a litany of
the kinds of things that weren’t raised here. But that might have been a way for the Navy to
justify its action. Was there a risk to military security from homosexuality? Were homosexuals
subject to blackmail? We went through all those and said that even under a rational review test,
there was no basis on which the Navy could kick him out.
Mr. Pollak: It was interesting to note, as you set forth in the opinion, that the regulation
in all of its other parts, and it was a long regulation, focused entirely on actions. And then it
came through at the end with this one item that was the only item that was at issue here.
Judge Mikva: Again, without giving homosexuals any special preference or any special
protection, the idea that someone could say, ”Yes, I’m a heterosexual,” and that’s okay, “Yes, I
have no sexual feelings,” and that’s okay, but ”Yes, I am a homosexual,” and that one statement,
not any conduct, not anything that flows from the statement, simply the fact that you can descn’be
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yourself as a homosexual is enough authority for the Navy.
Mr. Pollak: The last case you noted was Muldea v. New York Times Co., 15 F.3d 1137.
It was argued in September 1993, decided in February of 1994. It is a very interesting decision,
particularly as you were moving off of the court, with the opinion for the court of Mikva, Wald
and Edwards filed by Edwards and you filing a dissent. You could comment on whether that was
a rare occurrence for that trio? Just briefly to set the stage, the question was whether a book
review about a book by Muldea that said that it was sloppy journalism criticizing the National
Football League was libelous. The majority upheld a decision that the Times had to answer for
the book review, and you would have protected it under the First Amendment.
Judge Mikva: That is correct.
Mr. Pollak: Why don’t you speak about the case. It must be one of the last opinions you
wrote.
Judge Mikva: It was. Again, it had some subsequent action which I should have given
you a copy of. I guess I didn’t have it. They filed a petition for rehearing after a period, after
there were a large number of editorials in the New York Times and the Washington Post and just
about every other major newspaper in the country lecturing Judge Edwards and Judge Wald
about how they were threatening the First Amendment with that decision. Judge Edwards and
Judge Wald granted rehearin,g and Judge Edwards wrote an opinion reversing himself. I did not
write, it took a great deal of self-restraint not to write “I told you so, I told you so.”
Mr. Pollak: Were you still on the court?
Judge Mikva: Yes, I was. I just concurred in the new decision. The clerks were very
unhappy as a result. That came from 15 years of having been on the court.
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Mr. Pollak: And what did Judge Wald do?
Judge Mik:va: She .went along both times.
Mr. Pollak: So there was a unanimous court on the adoption of the position of the
dissent?
Judge Mikva: Yes. In fairness to Judge Edwards and Judge Wald, the first time around,
I’m not sure that whoever was defend.ing the New York Times, whoever was defending the book
review, did as good a job as they could have done in making it clear that this was commentary
and that this had to be at the heart of the First Amendment. We seemed to spend a lot of time on
the briefs and once Judge Edwards had reached an opinion, a lot of time was spent on the facts of
the controversy. If it was commentary, it shouldn’t even get there because you are talking about
an opinion. Your opinion doesn’t need to be accurate if it’s truly an opinion. If you say, in your
opinion, I was a lousy judge, there’s nothing that I can do about that. It’s not a libelous statement.
That’s what commentary is all about, especially when you are deal.ing with things as important as
the arts and literature of public officials. That’s what the whole notion of the First Amendment
freedom is about. I th.ink .in fairness to Judge Edwards and Judge Wald that the first time around,
while my dissent was based on the fact that this was commentary, this was opinion, they were on
other tracks. It was an example of how – one of the reasons the First Amendment is as
successful as it has been is that it has strong proponents out in the marketplace. Unfortunately,
other amendments, like the Fifth Amendment, Fourth Amendment, Eighth Amendment, don’t
have the same strong advocates defending . .
Mr. Pollak: Right, or revered advocates.
Judge Mikva: Revered advocates, the way the First Amendment does and so when we
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come across some of those, we struggle.
Mr. Pollak: That’s an interesting comment that those who seek the protection of the
Fourth, Fifth and Eighth are often very disfavored.
Judge Mikva: Yes, they are.
Mr. Pollak: And, impecunious.
Judge Mik:va: Impecunious. They don’t have very powerful spokesmen getting editorials
lecturing the judges.
Mr. Pollak: There was a split between the majority and the dissent over the application of
a, I guess, a Supreme Court opinion, Milkovich? Is there anything to say about that or is that to
one side of the issue that you’re making that this was commentary and should have gone down a
different road?
Judge Mikva: I think that’s what Milkovich was really about. I’m trying to remember.
As you notice, there was even an appendix in which …
Mr. Pollak: Yes, the book review is printed.
Judge Mik:va: And, again, it has more to do with, I think that partly almost invited error
that the book the Times, the book reviewer, just did not emphasize how clear this was, how this
clearly was a commentary problem and not a …
Mr. Pollak: The Times advocate.
Judge Mik:va: Right, what was advocated for the Times. Milkovich was a case where
they said that fact and opinion is sometimes an artificial distinction, and that’s true; it is
sometimes an artificial distinction. The problem is that it doesn’t follow that you can ignore
everything that is involved in protecting opinions in the marketplace. Basically, I can’t think of
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anything that is more what the First Amendment is about than reviews of books.
Mr. Pollak: The majority was using Milkovich and saying that if you make a statement
and it is verifiable by going to the facts, then you can’t have an opinion. The statement must be
verifiable, and the case goes to the jury on that.
Judge Mikva: In the second time around, Judge Edwards said, “Well, that’s not always
the same case.” Clearly when you’re dealing with something as opinion driven as a book report
Mr. Pollak: That is what a book review is, the writer’s opinion of that book?
Judge Mikva: I think this is one of those places where the absence of footnotes, I
probably wouldn’t have put it in anyway, but I remember when I was working with my clerks on
the opinion, I had come up with, I had remembered President Truman was very outraged at an
opinion about his daughter’s playing the piano, and I wanted to put that in.
Mr. Pollak: Singing, I guess it was. Truman played the piano.
Judge Mikva: Singing. It was Margaret singing. I wanted to put something about that in.
It was a very distinguished music critic for the Washington Post, as I recall; and I wanted to put
something in that both the critic’s right to criticize Margaret’s singing and the President’s right to
defend his daughter were both protected activity, but the clerks talked me out of it.
Mr. Pollak: Well, Judge, we’re coming down the home stretch I have a few questions
remaining, and I had some questions that I had laid out in the outline that focused on public
policy and judicial philosophy. I’m somewhat inclined to let the record speak for itself as you’ve
spoken on so many subjects of that. I do have a few that touch on your service as Counsel to the
President. These inquiries touch on your White House experience, but I concluded that there is
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no occasion to inquire generally into that area. Probably you may well have an oral history that
would cover aspects of that service, from archives or something. In any event, I’m not unwilling
to do it if you want to.
Judge Mik:va: Well, we can touch on it briefly. I haven’t done anything else. There aren’t
too many things that I can talk about. There are a few things that are related, that are law related,
that could be interesting.
Mr. Pollak: Initially, I wanted to ask whether there was anything you wanted to say about
how it came about that you left the bench and went to the White House.
Judge Mik:va: My leaving and my going there in the first place and my leaving the White
House Counsel position were both so simple, and yet everyone assumes that there were more
complicated reasons than there were. I had been on the bench for almost 15 years. I was going
on 69 years old so that I would have had to step down as Chief Judge about a year thereafter, a
little over a year. I’d enjoyed being Chief Judge and I’d enjoyed certainly my tenure on the bench
I’d kind of made up my mind that I was going to, when I stepped down as Chief Judge, take
senior status and probably spend some time as a visiting judge and some time teaching. Pat
Wald had been just a supportive and remarkable colleague. First of all, as I think I mentioned
earlier, she voluntarily stepped down earlier than she had to so that I would have a chance to be
Chief Judge. I could see from the problems she had had and I heard this from other people, it’s
not easy being an ex-chief judge on a court. It’s like being an ex-dean. I used to hear that
complaint from some of the ex-deans I knew that stayed on their faculty. One day you’re running
the whole operation and all of a sudden the next day you’re not running it and somebody else is
and probably isn’t doing it the same way you were; and the best thing you can do is keep your
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mouth shut and not offer advice, and that’s hard sometimes. I must say that Pat Wald, throughout
my Chief Judgeship, was a.remarkably supportive colleague. She always stood with me even if
she had to … she probably ended up with a sore tongue on many occasions from biting it. I
decided that I might not be quite that patient and that when I did step down as Chief Judge, I
would take senior status and probably spend as little time as possible sitting with my colleagues,
sitting elsewhere, teaching and so on.
All this had been going through my mind when I got a call from Lloyd Cutler, who as you
may remember, had been pressed into service at the White House and was White House Counsel
after Bernie Nussbaum left. Mr. Nussbaum resigned and left within a week after he resigned. So
Lloyd was pressed to return, and he’d agreed to go back to be White House Counsel,
understanding that he would only stay there, I think there was some kind of limitation and he
couldn’t stay longer than 91 days without losing his special government employee status. So he
called me and said, “Let’s have lunch.” We had lunch and he said, ”What are you going to do
when,” Lloyd and I had been friends for a long time and he knew I was getting near the age
where I’d have to step down as Chief Judge, so he said, ”What are you going to do when you step
down?” I told him what I was planning on. He said, ‘Well, how would you feel about stepping
down early?” I said, ”To do what?” He said, ”Take my place at the White House.” I never
thought about it. I never dreamed that there was going to be any other job at the end of my
judgeship. The more I thought about it, the more it seemed like an intriguing idea. I went home
and talked to Zoe about it; she thought it would be fun if it was what I wanted to do. So, I did it.
The problem was we were trying to keep it secret until I moved over to the White House, and it
leaked out earlier than we’d intended. It was announced earlier that I was planning. I’d planned
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that it wouldn’t be announced until Labor Day or thereabouts, and then I could step down. It
leaked out earlier than that.and so we had to have some kind of public ceremony in August. I
stepped down earlier than I had planned to by a few weeks. It wasn’t much of a to-do, but it was
just discombobulating. I didn’t get all my house in order before I left, I’m afraid.
When I went there, I found that it was as exciting and enjoyable as I thought it would be.
I liked the President. I liked working with rum He appreciated my skills and talents. I liked the
people I was working with, the White House Counsel staff. It was and is a superb group of
lawyers. It is probably one of those three or four lawyer jobs that are really – a lawyer couldn’t
ask for any better job. I had a great variety during the 14 months that I was there. Paula Jones
was kind of on the back burner. Monica Lewinsky had not yet erupted. I was able to spend a lot
of my time on judicial selection and counseling the President on legislation. Those were all
things that I had hoped to do. I was spending a little more time answering congressional
subpoenas than I would have wished, various records and so on; but on the other hand, it was the
first time I had ever seen the executive privilege question close up and it is fascinating to see how
this doctrine which goes all the way back to who knows when, certainly the beginning of our
Republic if not before, has so many different facets to it. All the time that I was there we never
once really exercised the executive privilege. We mumbled about it every once in awhile, but the
political consequences of exercising it were always so great that even though there were
documents that we would have preferred to protect, that people wished wouldn’t get called before
Congress, the political consequences were such that we just turned over everything. I remember
one crisis with the peso, for example, where we literally sent over trucks of documents to the
Congress because they were investigating the circumstances under which Secretary Rubin had
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intervened in protecting the peso. Three documents that we held out were telephone
conversations of the President and President Zedillo. Speaker Gingrich complained that we
were holding out three documents. The President was very outraged that we were holding back
anything. When I told rum what the three documents were he said, “Well, all we talked about
was golf and the weather, turn those over too,” and I finally had to remind him that it wouldn’t
look good if the New York Times had published conversations that he had in private with
President Zedillo.
So it was a fascinating 14 months, and I loved it. I have no regrets about having gone
there. The one regret I have is that I was 69 years old when I went over there. I was the oldest
person in the White House, with the exception of Secretary Bentsen. I think I was close to the
oldest person in the Administration as far as that point is concerned. Here was a President, 20
years plus younger than I am, and it showed. I’d come in at 6:30 in the morning and I’d leave at
8:30 or 9:00 at night. I was the first one out of the White House. They were still scheduling
meetings after I left. The President has an incredible work schedule; he gets by with very, very
little sleep. I sort of remembered when I was 20 years younger I could do some of that, too. The
one example I still remember is he had come back from a foreign trip, and he has these allergies
so his eyes puffed up. He looked as tired as I felt, and we had a 7:00 p.m meeting. We had this
meeting and it was the usual desultory White House meeting. We didn’t come to any firm
decisions, but it went on for a couple hours. I staggered out of there at 9:00 p.m and went home
and fell asleep with my clothes on without eating dinner. The next morning I saw one of the
deputies who said, “Hey, I saw the boss last night, he made a hell of a good speech” I said,
”Where did he make this speech?” Well, incredibly, he’d gone back to the residence, had a 15-
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minute nap and got up, was refreshed and went out and charged up the audience. When I was in
my 40s, I could do that. The rubber band doesn’t snap back that quickly when you’re in your late
60s. So after 14 months, I just was physically exhausted and I decided to leave and nobody
believed that was the reason that I was leaving. They were all convinced that I had something,
something had come up and it was something I was embarrassed about and I had to leave. I was
just flat-out exhausted. Turned out, after I left I found out I had walking pneumonia and it took
me about six months to get over it.
Mr. Pollak: You did?
Judge Mikva: Yes. But, I left for the same stated reasons, I was just too tired to keep
working.
Mr. Pollak: I think there’s a significance about a few questions that I’ll ask or about the
comments you make and, of course, there’s a significance for the whole oral history because you
are quite unusual. I don’t know as a matter of historical fact, but you’ve been a state legislator, a
federal legislator, you’ve been a federal appellate judge and you’ve been Counsel to the President.
Legislative, judicial, executive experience as well as, of course, a lot of private experience and
professorial experience. So I don’t know how many others in the history of the Republic have
had all three. I suppose there’s a few.
Judge Mikva: There are and I love to look back on some of the people that I claim as
examples and predecessors. John Marshall was one.
Mr. Pollak: An estimable person.
Judge Mikva: But, there were others, Jim Buckley, who was on my court with me, was a
United States Senator, was an ambassador, and a judge. You’re right, there are not too many.
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Mr. Pollak: You should put anything on this record that you want. One of the questions
that I want to ask you is what this experience at the center of Executive power made you think
about the role of judges and then the next question that I want to pose is what did your
experience that touched the selection of judges and the identification of people to be judges and
the process of finding people to be judges in nominating them? What did your experience there
tell you about that part of the judicial system, that is, finding people to be the judges?
Judge Mik:va: First of all let me say that the only way our system has worked as
effectively as it has is because we stumbled into this independent judiciary. You can’t have the
kind of constitutional system that we have without an independent judiciary, it just can’t work.
Too many times in our own history it’s been the judges that have kept the other two branches
from trumping the constitutional norms and expectations that we want to live up to. Watergate is
a classic example, but the times the court strikes down the excesses of Congress are other
examples. Other countries have tried to emulate the constitutional system similar to ours without
an independent judiciary and it comes a cropper. Many South American countries have great
constitutions, but they were military dictatorships, because the judges were not independent and
nobody could trump the executive and wouldn’t stop the executive from exceeding the powers
that the constitution granted him After all, the executive does have the Army and the Navy and
unless the court has some kind of tradition of independence, that black robe and high bench aren’t
really good defense against the military, as we found out in other countries. I guess I didn’t
appreciate it as much when I was in Congress because I felt that most of the time, because I was
there, Congress could restrain and constrain itself. Most of the time it does. Most of the statutes
that Congress passes are constitutional and are within the limits, but there are times it does
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exceed those limits; and again when I crune on the court and realized it isn’t just a flat out conflict
with the Constitution, like flag burning, but frequently it’s nibbling at the edges of the
Constitution that Congress does and it is up to the courts to check that nibbling. What a
remarkable institution the judiciary is. Those views were con.finned when I went over to the
Executive Branch because again, here is this institution of unelected people who aren’t supposed
to, and most of the time don’t, affirmatively make policy, once in awhile they do, but in a much
more passive role. I find it fascinating that the Supreme Court personnel, for instance, are known
by almost nobody. Justice Thomas is known because of the contretemps he had when he was
confirmed. But, other than that, people don’t know who is on our Supreme Court. They aren’t
popular figures in any respect. That’s one of its strengths and that is why the Justices can have
this influence and they can have this deterrent effect on the other two branches and the political
branches simply by being the branch they are. The reputation for independence. It is still a
source of amazement to every foreign country I go to. I try to explain to them that a lowly trial
court judge was really responsible for checking President Nixon in his excesses during
Watergate1 a working judge for a number of years.
Mr. Pollak: That was Judge Sirica
Judge Mikva: Judge Sirica But, when the occasion arose where he was obliged to do
these extraordinary things, he rose to the occasion as judges have before and did what was
necessary. But foreigners can’t understand. ”How could a trial judge exercise that kind of
power?” The fact of the matter is that under our system a trial judge can tell Congress, “You
can’t do this,” and tell the President, “You can’t do this.” It is exactly within his jurisdiction. The
order is valid and binding. That led me to the most interesting and cherished part of my
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experience at the White House, judicial selection. I came away impressed after seeing it close
up, from that point of watching how the President picks the individual judges. It is an incredibly
successful process. It doesn’t always bring up the very best people to the bench Learned Hand
never made it to the Supreme Court. A lot of good people never get nominated at all. But the
process works to keep bad appointees out, to keep people who can’t or won’t exercise that
independence of judgment. I think it was President Eisenhower said that – no – some other
President said that- picking Supreme Court justices was the worst part of the job of being
President because you appoint somebody and he or she is just a loose cannon once they get up
there. It was Eisenhower who said that the two worst mistakes he ever made were appointing
Justice Brennan and Chief Justice Warren. But that’s part of the role of the selection process as it
works, because judges are selected who really aren’t under the thumb of the President. Even
during times when perhaps the Administration poses too many litmus tests, as I think they were
doing during the Reagan Administration, even so, most of the judges who’ve come through the
process realize that once they’re on the bench they are supposed to exercise independent
judgment and they do it. So I came away from my exposure at the White House really awed at
how our judicial selection works and how absolutely essential it is. It’s .the balance we have
without which the rest of the system wouldn’t work at all.
Mr. Pollak: Did you observe a lot of pulling and hauling before a name would be
selected? How do you describe it?
Judge Mikva: When a lawyer first thinks about this kind of pulling and hauling and
lobbying the President and bombarding the White House Counsel’s office with letters and phone
calls, there’s always a shock. Judges are supposed to be above that political kind of stuff. These
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are appointments for life. They shouldn’t be involved in the political process. I think I realized
this from my own appointment, which was very much a piece of the political process. You may
recall, I encountered more than a little bit of trouble getting confirmed. It is absolutely necessary
and proper for judicial selection to be perceived as a part of the political process. It is, because it
should be the last chance that process has to affect the selection of the judge or what that judge is
going to do after he or she gets on the bench Of course, a President should be concerned about
who he puts on the Supreme Court. Of course, a Senator should be concerned about what kind of
recommendations he makes to the President for a nomination to the District Court. In turn, all of
these interest groups within our society, the bar associations and the special pleaders and the
minority bar associations, this is their last shot at it. Once Steve Pollak becomes a federal judge,
they can’t come in and lobby him and say, “Now, you know, we really would like you to look out
for the Hispanics a little better. We really would like you to look out for the Native Americans a
little better.” Their last shot is at who they get on the bench, so there’s a lot of pulling involved.
If it sometimes looks like it will end up either in total stalemate, no one will get appointed to
anything because everyone is pulling and hauling in different directions, or there will be some
kind of, what the conservatives call rent seeking, which will determine who the judge is going to
be. If it sometimes looks as if the President is going to use the appointment process solely to pay
off political debts or the Senators are going to use it solely to pay off their supporters, that isn’t
what happens. There is some of that; every once in awhile the President will propose somebody
who has been very good at fundraising for his party. Every once in awhile a Senator will propose
somebody who has been very helpful in that Senator’s most recent election. But 99% of the time,
names that are generated come up through some kind of merits proceeding. So the pulling and
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hauling is necessary and it doesn’t keep the process from working.
Mr. Pollak: What’s the single difference between service as the President’s Counsel and
service as a Judge?
Judge Mikva: Well, service as a Judge, and especially by the time I was Chief Judge and
had been on the bench for all those years, I really had to answer to my conscience. I wanted to
make my decision more than just my own private views. I had to try to make sure I
communicated well enough to get at least one other judge with me and enough judges to keep the
case from being en banced the other way. I wasn’t always successful, as you know. Basically it
was a very small group of people that were part of the decisional process for me. What was it
that I thought ought to be done? What was the legitimate basis for getting to that decision and to
make sure that I was comfortable, the clerks were comfortable and that I wasn’t embarrassing
myself by what I was saying and I had at least one colleague to go with me.
Getting a decision through the White House is altogether different. I mean it’s like
throwing a balloon up in a wind tunnel with 7 or 8 different wind machines blowing on it. It just
floats this way, that way, this way, that way and all of sudden it’s off in that comer and all of
sudden it comes back in this comer and it’s fascinating to see how the process comes to closure.
When I was in the Legislative Branch, particularly, I used to complain at the inability of the
Executive Branch to make a decision. “Right or wrong, make a decision. Do it.” Even as a
judge I would fault the Executive Branch for being so dilatory in the way they performed
decisionmaking. When I got over there, I realized it’s amazing that any decisions ever come out.
Because by the time something would come up to me, where we were prepared to put in a
Presidential memo on some issue, whether it was a judicial appointment or something that the
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CIA was doing, or a piece of legislation, it had already gone through maybe hundreds of these
buffetings that I was talking about and then we finally had agreed that this is the decision memo
that we want to send in to the President and say this is the decision we recommend, yes/no. That
decision memo would sometimes sit there and sit there. Frequently, with judicial appointments,
for instance, we were recommending somebody about whom there was a controversy, and it got
to the point where some of them where there were one, two, three, four memos that had become
stuck. I sometimes ended up following them up in person. Nancy Hemreich, who was the
President’s secretary, would see me walking down the hall, and she’d know that there was some
decision that I was particularly concerned about. Before I even said anything she would say ”He
hasn’t decided yet.” You’d wait for that left-handed check:mark- knowing the way the process
works – that until that decision memo comes back with the yes or the no on it, you don’t have the
authority to do anything except send in another decision memo. I don’t know how else you can
lead the nation of 260 million prima donnas who pride themselves on their individualism and
their freedom and liberty except very carefully and not too far and not too fast.
Mr. Pollak: Well, I think that’s all the questions I have.
Judge Mikva: Well, that’s good because I was hoping that the supply of answers would at
least keep up with the questions.
Mr. Pollak: Well, the White House service was, I’m sure, exhausting but was a great
additional track.
Judge Mikva: I wouldn’t have missed it for the world. The only regret I have, and it’s a
very minor regret because I love my lifestyle – I spent from 1956 really, almost 40 years in public
positions of one kind or another, and I miss the support system that that entails. Not just the staff
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people to help, and I had some incredibly bright, talented people doing my research, helping me
with speeches, helping me with decisions, from law clerks to the congressional staff to the White
House staff, White House Counsel staff, but also in the support system in terms of other people
you can call on because you are dealing with public decisions.
Mr. Pollak: They take your calls and they want to respond.
Judge Mikva: They want to respond. They want to be a part of it. Now, I’m working on
my course materials for next fall and thinking about how I can stimulate my students to think
about the legislative process. I’m lucky if I can get one of my colleagues on the faculty, at least,
to listen to me for 10 minutes. Usually, they look at their watch and say, “Well, I have to go.” I
have been spoiled. I hadn’t realized how much.
Mr. Pollak: Was it a difficult decompression to leave the public life?
Judge Mikva: First of all, it wasn’t because I was so physically exhausted. It really was
just sort of a relief to get out of that kind of pressure pot. Zoe and I worried about going back to
Chicago, whether we would be bored or lonely. I must say, partly because Chicago is such an
incredibly great city to live in, and partly because this has been a particularly torturous time for
the government, I’d rather be anywhere but Washington. So the decompression wasn’t as bad as I
thought it would be. In decompression, you have to think, “Gee I wish I were there doing those
things,” and I didn’t wish I were Chuck Ruff, I didn’t wish that for a minute. He still teases me;
we had lunch just before I left – I’ve known him for a long time and just before he went to the
White House we had lunch and I said, ”The good news, Chuck, is that I think that we got most of
that Whitewater mess behind us, Paula Jones is at rest, Whitewater, there really isn’t anything
there, and you can spend all your time on the judicial appointments and legislation.” He reminds
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me of that conversation.
Mr. Pollak: You were a great predictor.
Judge Mikva: Boy, did I mispredict.
Mr. Pollak: Well, well ….
Judge Mikva: This is enjoyable.
Mr. Pollak: Well, that’s the end of the ninth interview of Judge Mikva. We completed
the interview at 12:55 p.m on the 19th of May.