Oral History of Judge Stephen F. Williams
Session 3
March 2, 2008
Mr. Nuechterlein: I’m talking to the Judge today about his nomination and confirmation to
the Court. I think we left off our last interview with the judge’s academic
career, so now it is time to talk about the day he got “the call”. Apparently
he was first considered for the Tenth Circuit, but that encountered
difficulties, so he was later proposed for the D.C. Circuit. So, Judge, why
don’t you tell us how you first found out that you were being considered
for a seat on the Tenth Circuit.
Judge Williams: I have to admit the process started with me. It started at a very particular
moment in time, which can be checked out easily, and that was when I
read an editorial in the Wall Street Journal revealing and celebrating the
nomination or confirmation of Dick Posner for the Seventh Circuit. I said
to myself that if they want Dick Posner for the Seventh Circuit, then surely
they will want me for the Tenth Circuit. There are obviously a number of
leaps in that logic. In any event, I made some phone calls. Actually, the
person who was completely pivotal through the whole thing was Bill
Buckley. Both directly through his friendship with the President and
through various indirect steps, he boosted my nomination.
Mr. Nuechterlein: Maybe it makes sense to pause here for a moment to talk about Bill
Buckley, who died this past week. I know you went to the same school as
he did?
Judge Williams: I did.
Mr. Nuechterlein: But you didn’t overlap at all.
Judge Williams: No, not at all.
Mr. Nuechterlein: When did you meet him?
Judge Williams: I think I may have met him briefly when he came up at Yale when I was
there. I am not honestly sure about that. Faith and I had dinner at his house
in New York sometime when I was a lawyer there. Must have been the
late ’60s. At that time I was at the U.S. Attorney’s Office. There were
quite a few people there, including Jim Buckley, whom I didn’t know but
who would later become my colleague on the court. My most intensive
contact with Bill was in connection with my nomination, and there were
many phone calls, sometimes his reporting a development, sometimes my
reporting a development, discussing what might be done.
Mr. Nuechterlein: So Posner was nominated to the Seventh Circuit, and you found out about
it, and you thought it would be appropriate — a stroke of similar wisdom
— to appoint you to the Tenth Circuit?
Judge Williams: A comparison is not an identity.
Mr. Nuechterlein: So you picked up the phone and called Bill Buckley?
Judge Williams: No, I actually called my father who was very close to Bill, and he started
Mr. Nuechterlein: Was you father in retirement at this time?
Judge Williams: Yes, he was.
Mr. Nuechterlein: So he contacted Bill Buckley.
Judge Williams: Well, although I described what seemed to be suitable logic for the
administration, actually I wasn’t expecting at all that that logic would be
followed. So at first I wasn’t very invested in this. And then I got a call
telling me that my nomination to the Tenth Circuit had passed the
“Thursday Committee,” which was a committee of Justice Department and
White House people who met on Thursdays and talked about judicial
nominations. Passing the Thursday committee normally led to a
nomination, and nominations in that era led pretty often to confirmation
and appointment.
Mr. Nuechterlein: Do you know who was on the Thursday Committee?
Judge Williams: I honestly don’t. It was a fluctuating membership.
Mr. Nuechterlein: Did you have to talk to any of these people?
Judge Williams: No — or at least not that I know of. That is to say, I don’t know the exact
membership of the Thursday committee.
Mr. Nuechterlein: So they were just proceeding on the basis of Bill Buckley’s
Judge Williams: At least in the sense of starting out, right.
Mr. Nuechterlein: Presumably he was not himself…
Judge Williams: No, absolutely not. No. No.
Mr. Nuechterlein: So you didn’t have close personal ties with anyone directly involved in the
process. Were you being considered because of your ideological
orientation? Because of your scholarship? Had somebody in the
administration read it?
Judge Williams: I think somebody had at least looked at it quite early, and at a later stage I
did speak with Justice Department people in Washington who had read
some of it. One of the people I met with that I particularly remember was
John Harrison, who now teaches at UVA. Do you know him?
Mr. Nuechterlein: I think I have met him.
Judge Williams: Yes, he is very smart. But if they were checking me out for ideological
soundness in those meetings, they had a very subtle way of going about it.
At least it so seemed to me. There was a somewhat roaming discussion
intelligent people might have about the law. Since then I have occasionally
gotten a call from someone who was being considered and looking for
guidance on how to confirm one’s ideological credentials. And I am not
able to provide any guidance because I at least didn’t feel called upon to
prove my bona fides as a conservative.
Mr. Nuechterlein: Do you know whether they were talking to any friends or colleagues?
Judge Williams: I’m not sure whether the FBI and ABA vetting began right after I passed
the Thursday committee, but my recollection is that, not long after that,
word came of trouble in the form of Senator Armstrong.
Mr. Nuechterlein: Armstrong of Colorado – the Republican senator?
Judge Williams: Yes — Gary Hart was the other senator.
Mr. Nuechterlein: You were OK to Hart?
Judge Williams: Yes; at least there was no report of opposition from him. Anyway, word
came back to me that Senator Armstrong objected. I am reasonably sure
Senator Armstrong never said, although it was probably the case, that he
didn’t like the idea of a nomination being driven by forces outside
Colorado. There was a turf aspect to it.
Mr. Nuechterlein: Had you ever met him?
Judge Williams: No, I hadn’t. After my name surfaced, I met him twice, when the Justice
Department thought that, at a meeting, I could bring him around, but I
failed to. He pretty much said at the beginning of each of the meetings that
there was no chance of bringing him around.
Mr. Nuechterlein: So these were two meetings that were held between your endorsement by
the Thursday committee and the ultimate decision not to nominate you to
the Tenth Circuit?
Judge Williams: Yes.
Mr. Nuechterlein: What year is this? 1986?
Judge Williams: No; 1986 is the grand successful climax.
Mr. Nuechterlein: So probably ‘84.
Judge Williams: As I recall, we’re talking of ‘83 & ‘84. Senator Armstrong was extremely
nice — and totally unmoved by anything I had to say. I should say that the
turf battle aspect seemed to be a very significant, perhaps dispositive,
factor. But he also had the idea that I was a liberal in conservative
Mr. Nuechterlein: What gave him that idea?
Judge Williams: Well — I think in 1972, I had actually rung doorbells in Boulder for
George McGovern. The Vietnam War was a very big issue. I had what I
regarded as a centrist position; I was very concerned about what would
happen to the people there who had supported us. It seems to me that
concern was well placed.
Mr. Nuechterlein: It has certain analogues today.
Judge Williams: So I am not sure whether he had accurate information, on which he
personally put an extreme cast, or whether he got all kinds of inaccurate
reports that were exaggerations of my leftist phase.
Mr. Nuechterlein: How did he know that you had rung doorbells for George McGovern?
Judge Williams: I don’t know if he knew that. I point it out because, if you were looking
for activities in my background that were suspicious from his point of
view, that would certainly be such an activity. A second thing I should
mention is that Faith and I went on a candlelit peace march on a beautiful
snowy evening in Boulder, with Geoffrey on my back.
Mr. Nuechterlein: What year was that?
Judge Williams: Geoffrey was a year and a half — so it had to be late ’70 or early ’71.
Mr. Nuechterlein: Did Senator Armstrong raise any of these ideological concerns during
your interviews or did you just surmise?
Judge Williams: He certainly didn’t say, “I am suspicious of you because word has it that
you have done ‘X.’ ” He just seemed to have a vision of me as at best as a
recent convert, and at worst as a liberal in conservative clothing.
Mr. Nuechterlein: Did he say that? Did he say he was concerned because you were a recent
Judge Williams: I am sure he didn’t use those words, and what is hard for me to sort out —
especially at this remove — is how much I was told by someone in the
administration about what he thought and how much was what he said to
me. My memory of the two meetings is that he was an extremely
agreeable and charming person and that I got absolutely no sense of
moving him an inch on the matter.
Mr. Nuechterlein: Were you there alone or were you accompanied by anyone?
Judge Williams: I was alone. One meeting I remember explicitly was in the Senate Dining
Room. I don’t know why it was in the Senate Dining Room; it was not
meal time, and we didn’t eat anything.
There was quite a long period between the initial discussions about the
Tenth Circuit and when they actually decided to put me forward for the
D.C. Circuit. In fact, I don’t think I was ever told that they had completely
given up on the Tenth Circuit. What happened was that it kept ebbing and
flowing, and suddenly the D.C. Circuit emerged out of nowhere.
Mr. Nuechterlein: Was there a particular call you got when you heard that you were now
being considered for the D.C. Circuit?
Judge Williams: It wasn’t quite that way. The call came from Grover Reese, I forget his
exact title at the time, but he was an aide to the Attorney General. … I
vividly remember Reese’s somewhat elusive call. He said that they wanted
to nominate me for a court. His first position was he couldn’t tell me what
court it was, and I said even though I did want to be a judge, I didn’t want
to go to Alaska. In fact there were very few courts I would want to be on.
Mr. Nuechterlein: Did you have a sense that it was an appellate court?
Judge Williams: I think, after some provocation by me, he did say it was an appellate court.
Then, after some more phone calls in fairly short order, I finally persuaded
him to tell me, on condition that I would promise, under oath, that I would
not reveal it to a soul. So I took that oath.
Mr. Nuechterlein: Including your wife?
Judge Williams: Right. Actually, it was only a four-day period, as I recall, between when I
knew what court was involved and when I got the call from Reese saying
they were going forward, soon followed by a call from the President. I
probably told Faith after the call from the President.
I must have come fairly close on the Tenth Circuit, because I know my
ABA vetting and my FBI vetting were all done under the assumption that
it would be the Tenth Circuit. That led to one of the more startling
moments of the whole process. When I went before the Judiciary
Committee it was a rather strange scene. There was a district court
nominee from California, who had Senator Wilson in attendance and a big
booster group in addition. I, of course, had no Senator supporting me. I did
have my family.
I was called behind the hearing room before the session began. Duke
Short, the Committee Counsel, read aloud five questions that he predicted
Senator Thurmond would put to me; he also briefly held a piece of paper
in front of me with the questions. He was entirely accurate, word for word,
as I recall. I could not precisely understand Senator Thurmond’s actual
words. He certainly had a very heavy Southern accent, and although no
one has ever confirmed this for me, I think he may have had a stroke or
something; it seemed to me his speech was slurred. The questions came in
the order read to me, and of course once a fragment came through I could
fill in the rest. There were also one or two questions from Senators other
than Thurmond.
Mr. Nuechterlein: The usual protocol now is to go meet the individual senators on the
Judiciary Committee before they show up for the hearing. Did you do that,
or was your first experience with Senator Thurmond at your actual
Judge Williams: That was my first exposure to him. I met with Senators Hatch and
Simpson shortly before or after the committee meeting. I remember both
interviews very well, each for very different things. Senator Simpson was
very gracious and hospitable and told jokes, and I went on my merry way.
Senator Hatch, after a friendly greeting, started by saying, “I know your
parents were very staunchly left wing.” I said, “Senator Hatch, I have to
stop you there.” And I gave a brief précis of my parents’ conservative
credentials. He didn’t seem to be out to get me at all. I honestly forget
what we talked about afterwards. Maybe it helped that I was able to dispel
the first problem rather firmly.
Mr. Nuechterlein: Did he ask about your own ideology?
Judge Williams: I don’t recall if he did.
One thing I left out; we got diverted slightly from the Senate Hearing. I
should come to the climax of that. The last question — or, rather,
statement — was from Senator Simon, who said: “When you were
checked out by the FBI and ABA, you were being considered for
nomination to the Tenth Circuit. Here you are nominated to the D.C.
Circuit, so this will have to be redone.” I remember it was a declaration,
not a question or suggestion. I responded, first, that the criteria for being
an appellate federal judge should be the same for all circuits — and,
second, that, if there was a difference, the fact that the D.C. Circuit has
such a heavy administrative law caseload made me more suitable for it
than for the Tenth Circuit, as I had taught Administrative Law for years. I
talked afterwards with my Justice Department handlers, and they managed
to make sure there wasn’t a complete redo.
Mr. Nuechterlein: Did Senator Simon oppose your nomination?
Judge Williams: No.
Mr. Nuechterlein: Did anyone oppose your nomination?
Judge Williams: No — no one openly. In fact, the day that I got the call saying the Senate
had voted, whoever called said, “Yes, seven judges in seven seconds.”
Mr. Nuechterlein: And then they rested.
Judge Williams: Right.
Mr. Nuechterlein: You were talking about Strom Thurmond and his questions — do you
remember the substance of those questions?
Judge Williams: How is the Constitution to be amended — by Article 5 or by the
Judiciary? And that seemed to have an obvious answer. I am slightly
simplifying the question in my rendition of it, but that was perhaps the
most totally obvious one. I would say that all of the questions had the
happy attribute that the answer that was right for Senator Thurmond was
also right. It was the obvious and the inevitable answer. They were
obviously rhetorical questions. I guess someone out to push a “living
Constitution” model might have had a hard time answering them.
Mr. Nuechterlein: I think they would say they are not amending the Constitution.
Judge Williams: Of course, that is how they would handle that.
Mr. Nuechterlein: To back up a little bit, when you heard that you were being diverted from
the Tenth Circuit to the D.C. Circuit, did you view that as a promotion? Or
were you sorry you wouldn’t be in Colorado?
Judge Williams: Yes, I was sorry I wouldn’t be in Colorado, but I thought the D.C. Circuit
would be much more fun.
Mr. Nuechterlein: So you viewed this as a happy development.
Judge Williams: Yes, as long as Faith could be persuaded it was a good development.
Mr. Nuechterlein: And could she be?
Judge Williams: Yes, she could be. Reluctantly. She did it for me, to put it simply. If I had
been indifferent about the choice, she would have been decisively
Mr. Nuechterlein: How about your kids? Were they happy with the prospect of moving?
Judge Williams: Susan was in college at that time. In a sense, the move was hardest on
Geoffrey because he would be coming here for his last year of high
school. But he liked the idea of something new. He is pretty
adventuresome. The three youngest didn’t voice any objection. I don’t
know if they fully grasped what was going on. And Faith took them here
to look at houses with her. And they all came for the Senate hearings.
Looking at houses before the Senate acted seemed dangerous to me —
likely to be taken as a sign of hubris. She certainly tried to accustom them
to Washington and to the schools they might end up at.
Mr. Nuechterlein: A postscript on the Tenth Circuit nomination — who ultimately filled that
Judge Williams: Filling it took a long time. I am not honestly sure why, but, as in our court,
a seat can stay empty for many years. In the end, it was filled by David
Ebel. Do you know him?
Mr. Nuechterlein: I know people who clerked for him. He is probably one of that court’s
most respected jurists.
Judge Williams: Yes. I have met him and like him very much.
Mr. Nuechterlein: So you got the call you had been confirmed by the Senate. That must have
been very exciting.
Judge Williams: Yeah! In the period between the hearing and the final Senate vote, some
people were obviously interested in derailing the nomination. An
alternative newspaper in Colorado, Westword, had an article, and its pitch
seemed to be aimed at depicting me less as a turncoat than as an
opportunist. I guess there could be a lot of overlap between those two
categories. I remember my brother-in-law, Steve Morrow, wrote a letter to
Westword. which they published. [He said] it is true that Stephen Williams
was a liberal before he was a conservative, but it is also true that he was a
conservative before he was a liberal. He had known me when I was about
ten. He was in a position to vouch for my early ideology.
Mr. Nuechterlein: This alternative newspaper was a liberal newspaper?
Judge Williams: Yes.
Mr. Nuechterlein: So you would think they would take some comfort in the possibility that
you were an opportunist because that might have meant…
Judge Williams: Right. I guess it would depend on where they felt the advantage lay. There
had to be some suspicion. I had the feeling that somebody was stimulating
this; just who, I don’t know.
Mr. Nuechterlein: Seems like it never gained much traction.
Judge Williams: No, I don’t think so. I had gone to school at a very early stage with a
person who later became a Senator from West Virginia, Jay Rockefeller,
and I remember calling him up in this period of uncertainty. He said, in
essence, we Democrats don’t care at all. He obviously didn’t think the
administration was sneaking a liberal in. He seemed to think it was a
Republican fight.
Mr. Nuechterlein: How long between the time you got the call and you actually moved out to
D.C.? Didn’t you have courses you were teaching or scheduled to teach?
Judge Williams: It worked out pretty well. Through the spring of ’86, it looked as if I
would be confirmed, so I would not be teaching in the fall. Actually, in my
last year of teaching, I taught two courses for the first time—Federal
Courts and Public Lands, a Western-oriented course. I can’t say there was
much payoff to teaching the second once I got to the bench.
Mr. Nuechterlein: But you had had Tenth Circuit aspirations.
Judge Williams: Exactly. It meant that I knew a little more of the vocabulary of these rather
special arrangements than I would have. I do remember one line from the
course book that I used. Someone celebrating wilderness described it as a
place “where the hand of man had not set foot.”
Mr. Nuechterlein: I assume — I know — there is a formal process by which you are inducted
in the court.
Judge Williams: I was sworn in on our deck — we have a picture of it.
Mr. Nuechterlein: In Colorado?
Judge Williams: Yes — in Colorado. A local district judge, Jim Carrigan, who retired
rather than take senior status, and now I believe conducts a lucrative
arbitration business. But in any event he swore me in. My family and
Steve Morrow were there, I’m not sure about Steve’s wife. We had a beer
and I was a judge.
Mr. Nuechterlein: This is the analogue to a wedding on the beach with one’s family.
Judge Williams: Right. Then there was an investiture back here.
Mr. Nuechterlein: Where was that?
Judge Williams: That was in the courthouse.
Mr. Nuechterlein: I assume all investitures are in the courthouse.
Judge Williams: Yes.
Mr. Nuechterlein: For some reason I thought the swearing-in was part of the investiture. But
apparently not.
Judge Williams: Well, you take the oath again, but it is decorative. The speakers were my
brother-in-law — who really had everyone laughing; he was a great
speaker — and Kent Greenawalt.
Mr. Nuechterlein: The professor at Columbia?
Judge Williams: Yes. This is another suspicious part of my past. Actually- I don’t know
how it was regarded. But I was with Kent in Mississippi in the summer of
Mr. Nuechterlein: You were a freedom fighter.
Judge Williams: Well, a legal freedom fighter. He and I worked on a number of cases that
were all at an early stage of development. I remember working on a
complaint in a case called Love v. Mississippi. And Love was indeed the
right name, because the theme of the case was that there was some
constitutional illegality, I forget of just what sort, going on in
Mississippi’s failing to give welfare, or putting restrictions on welfare, to
unwed mothers. Love that had been carried too far.
On another case, I remember, Kent and I did field research, not very
successful, in some town in Mississippi. We were essentially talking with
possible plaintiffs or witnesses, for a case about discrimination in public
services. Tony Amsterdam — who was then and still is a well-known Con
Law professor — developed the original theory.
Mr. Nuechterlein: He and I worked on a cert petition about a year ago.
Judge Williams: Oh really?
Mr. Nuechterlein: About Alabama’s death penalty scheme.
Judge Williams: Oh, OK. This was a possible claim of racial discrimination in the
allocation of municipal facilities. The roads in the black sections of this
town did not seem to be very well kept up. What left its impression on me
was when our host for the night showed us the bullet holes in the wall. The
family that gave us a room for the night had been actively involved in
protesting the power structure, and the power structure had reacted. I don’t
think anyone had been killed.
Mr. Nuechterlein: Just intimidation.
Judge Williams: Yes, intimidation. And I remember Kent and I were driving along the road
and were pulled over by a sheriff’s car. Remembering the bullet holes in
the wall, we were anxious, but nothing happened.
Mr. Nuechterlein: Back to the summer of 1986. When did you formally join the court and
occupy chambers?
Judge Williams: Shortly after I got through the Senate, I came to Washington and
interviewed a few clerks and I also hired Mary. Mary had been working
for Judge Wald, and Judge Wald had been perfectly happy with her, but
because of the pay structure of judges’ secretaries, she could not pay Mary
more. Mary wanted to be Chief Secretary, which would mean more pay. I
forget how we found Lindy — Mary was instrumental in that.
Mr. Nuechterlein: I know one of your clerks from the first year was Bill Mooz. He was a
student of yours at Colorado?
Judge Williams: Yes, he had been. He also helped me as an R.A.
Mr. Nuechterlein: Who were the other clerks from that first year?
Judge Williams: The other clerks were Rob Tiller and Josh Rosenkranz. Josh was in the
unusual position of having already clerked, though only momentarily, for
Scalia.10 As I recall he’d been hired for a Scalia clerkship on the D.C.
Circuit for ’86-’87 and for a Brennan clerkship for ’87-’88. So when
Scalia was appointed to the Court, Josh’s court of appeals clerkship was
Rob Tiller had been going through law school, and then he was scheduled
to be another clerk of Scalia’s. There was a third clerk Nino had picked,
Paul Cappuccio. People talk about Nino sending me his clerks, or offering
them to me, but of course they are human beings and the Thirteenth
Amendment does apply, and Paul did not seek to work with me. My next
year’s three clerks were all part of my Scalia inheritance.
Mr. Nuechterlein: Had you known any of the judges that were on the D.C. Circuit when you
joined the court?
Judge Williams: Jim [Buckley] was on but I knew him only from dinner at his brother’s
house. Leventhal11 at that time was long dead, but I had met him. I did a
paper for the Administrative Conference. All papers were done under the
guidance of a committee before they went before the full Conference. It
was [Judge Leventhal’s] committee that had charge of the subject, so the
paper was to go before his committee.
I may as well tell you this story though it is somewhat embarrassing. I was
supposed to come to Washington to talk about the paper with the
committee, but there was some confusion about the date — entirely my
fault — and I came to Washington exactly one week ahead of the
scheduled meeting. But [Judge Leventhal] very kindly made time in his
schedule to talk with me about the draft. And I am reasonably sure I talked
10 Antonin Scalia served on the D.C. Circuit from 1982 until 1986, when he was elevated to the Supreme Court.
11 Judge Harold Leventhal served on the D.C. Circuit from 1965 until his death in 1979.
with Bill Allen of Covington on that occasion. He was a wonderful source
of ideas for improving the paper.
Anyway, by the time I got to the court, Leventhal was dead. Jim had just
joined, and apart from him I didn’t know any of them. I made a number of
calls before I started — one to Ken Starr and one to Larry Silberman, both
of whom were very welcoming.
Mr. Nuechterlein: When you came to the court in ’86, did you have the impression that it
was an ideologically divided court in any way?
Judge Williams: It had that reputation around the country, and I didn’t see anything that
particularly contradicted that. When I look at the list of my cases for the
first year or two, I see there were quite a few dissents. But we didn’t have
abortion cases, of course, which for the last 35 years have been the
greatest single source of judicial disharmony. I think in my 22 years, the
case most closely touching abortion was a dispute over funding birth
control activities abroad, and I was not on that panel. So that whole hotbutton
area was out.
Mr. Nuechterlein: To the extent the court was divided ideologically, was it your first
impression that it was a friendly ideological division or was it a personal
one or somewhere in between?
Judge Williams: There were certainly elements of rancor. Very definitely. At various
meetings of the court, when we were alone together, people used some
quite harsh language. Nothing like that would happen today.
Mr. Nuechterlein: Is that largely a function of the personalities involved or a function of
Judge Williams: A combination.
Mr. Nuechterlein: In some ways the ideological divisions in Washington are worse today.
Judge Williams: Just what the explanation is, is not clear.
Ben Wittes is writing a book on the federal courts of appeals and has
puzzled over all of this. Part of it is the caseload. He compares us with the
Sixth Circuit, where they have a great deal of death penalty litigation —
another subject we don’t have at all. He depicts a group of judges there
that feels the death penalty is a weapon being used against the
community and another group that doesn’t see it at all
that way. Here, race and sex preferences were the biggest divisive issue,
but there were others. To some extent there were environmental cases that
acquired an ideological look to them. How much else was going on I am
not sure.
Mr. Nuechterlein: Give me a sense of the social life you had with the other members of the
court during this time. I can imagine a lunchroom with Reagan appointees
at one table and Carter appointees at another.
Judge Williams: Well, very few of the court of appeals judges had lunch in the judges’
dining room at all, so they didn’t have a chance to divide in that way. I am
an extreme example — having an apple and sandwich in my office. There
weren’t all that many occasions for us to manifest discord at mealtime.