Oral History of Joseph L. Rauh, Jr.
Conducted by Robert S. Peck
1984 ADA Meeting and Thereafter to 1992
[Side A]
I remembered that ’84 meeting of the ADA because it was strange
thing to have happened that George McGovern whom we’d supported once and who’d lost very
badly, so politicians kind of shun people who’ve lost once. George did call me and said, “Would
I nominate him? Would I make the case for him at the ADA?” I hadn’t been active in the ADA
since 1980. I haven’t been active in it now since ’84 either. I couldn’t turn George down, an old
friend and great wanior. So, we went. I think the rule was they had to get 60% for a nomination
support. What they did was eliminate somebody each time. The first time Jackson got
eliminated, on the second b?ot Cranston got eliminated. Hart took bis name out. His pollster
was there and asked that be not be considered. That’s because he would have been fifth. So,
we’re down to George and Fritz [Mondale]. George was fighting that, and Fritz got one more, I
think, than 60, because he didn’t pick up the Jackson votes, but whoever was running the
Cranston thing wanted to eliminate George, wanted it to come down to a battle between Cranston
and Mondale. So, they went for Mondale against McGovern even though their views were much
closer to McGovern’s. Anyway, by, I think, one vote they were able to get their 60%. Well, then
I moved to defer the thing until much later because it’s early in the campaign. Maybe Mondale
will be too conservative, and why don’t we just defer it.
I got the votes of the non-labor people, the majority of those, but that wasn’t
enough The labor people who voted as a phalanx, plus the minority of the individuals, were able
to defeat my motion to defer. That was a perfectly legitimate way of dealing with the problem I
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tell you what happened now that I think of it. I made that motion. The man in the chair, I think,
was Marvin Rich I’m not sure. He consulted Leon Scholl, who ruled me out of order, which is
pretty strange to do to the guy running the organization for so long. I stood there while he ruled
me out of order, and thought, what the heck – shall I appeal the ruling of the chair or should I
not? I decided, what the heck, I might as well as get trounced as a man than as a mouse. So, I
said, “I appeal the ruling of the chair.” They didn’t even know what the procedure was for an
appeal ruling of the chair, but I explained it to them: that I got a right to speak and then one
person speaks and then the chair speaks, but the chair wouldn’t be in the chair anymore if all that
happened. I argued against bemg out of order. You know I’ve been around a long time. I had
Roberts Rules in my pocket, and that’s what the ADA is governed by. I read them Roberts Rules
– motion to defer is appropriate at any time, and then somebody said something, “Well, we called
the meeting for this purpose, and therefore you can’t have motion to defer.” Well, Roberts
doesn’t an exception. That’s the vote we had. They beat me. They sustained the ruling of the
chair that I was out of order. So, Mondale got the nomination. It would have helped George a
little bit, but Mondale would have been nominated. I happened to think maybe the only person in
America, I happened to think Mondale was right, politically as well as substantively, when he
said that he had to raise taxes because you couldn’t do all the things that people were saymg
without raising taxes. I thought he was right. He would look like a bigger jackass saymg he can
spend all this money but not saying how you get it. That was murder I gather, and it’s been
murder ever since to say the truth which is you’ve got to raise taxes. There was a campaign. I
was for Mondale. I think he was right in what he was domg. He was a lot more hberal than
Reagan, and I helped a little bit, as much as I could. I was already then 73. I did make
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arrangements for John Andersen, to whom I have remained close, to -campaign for George. We
had to make some financial arrangement guaranteeing those who might, because he was
campaigning, might cancel his speeches. I think only one speech was canceled. I don’t think
George ever asked for that, so it turned out all right. They had a big Illinois reception for George
speaking for Mondale, I think it was in Champaign, and Andersen was the big supporter. I think
Andersen’s been sort of for the Democrats ever since ’80. I’m glad to see that. What he would
have done with Perot, who was the only one who supports John’s belief in a third party, I don’t
know. That’s over, so I imagine he11 support Clinton very strongly. The tax question turned out
to be a disaster politically, and nobody will ever know whether it would have been just bad or
worse the other way.
Mr. Peck: We had actually come back after talking about the Bork, Ginsburg
and Kennedy nominations to that convention, which means that, I think, brings us to the ’88
Presidential election at this point.
Mr. Rauh: In ’87, I had a hip transplant, in January of ’87, and that went
beautifully, swimmingly well, and three days later I had a heart attack, internal bleeding, and I
came pretty close to dying. I was in intensive care for a couple of weeks; I was in the hospital for
almost two months. No, it wasn’t quite that long. I think it was five weeks. I got home on
Valentine’s Day. I went over on the 5th of January and got home on Valentine’s Day. They
brought me home in an ambulance from Jolms Hopkins. While I was recuperating, a couple of
things happened.
In the first place, my wife, was an incredible advocate for me in the hospital. I
would tell anybody with a bright, loving wife, to have her by your side in the hospital. They’re
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about to do 95,000 things wrong, and each time she would catch it. She was just incredibly
helpful. She lived in a hotel across the street from Johns Hopkins, spent her time there, and she
is really the reason I didn’t go, I believe. At any rate, I think that certain things happened as I was
recuperating.
One of them was the D.C. Law School had persuaded me to help with the saving
of Antioch, which was really the creation of the D.C. School of Law. I did that, but Olie thinks,
and I guess it’s true, that the real adrenaline came from the Bork case. I went to work on the Bork
thing and we did succeed in defeating him
In the campaign I helped Dukak.is. I had gone to a fundraiser for him in
Washington, and he recalled, or I recalled, we recalled together, a meeting at American
University in 1953 or ’54 when he was at Swathmore. I had made a speech against Joe McCarthy
to what was called the ,vashington Semester. That’s a couple of months of attendance at
American U. of students from all over the country, college students. When I finished, a young
Swathmore junior or senior got up and made another speech against McCarthy, Joe McCarthy. It
was great, absolutely great, and that was Mike Dukak.is. I was very impressed with him Here’s a
young Greek, ethnic politician, wanting to make his career in politics, and in the ethnic State of
Massachusetts took on Joe McCarthy. I thought that was absolutely great.
During the course of the speech at the fundraiser, he referred to that. I started
doing things, but I never did, I was by that time 77, and wasn’t terribly active, but I helped him all
I could. I thought he was going to run a good campaign. I thought anybody who could make an
eloquent speech against McCarthy as a junior or senior in college could be a good campaigner. I
was wrong. He was not a good campaigner. I cringed the night of the debate when Bernard
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Shaw asked him what he would do if bis wife was raped, and he gave such a pallid answer that it
was temble. I think that was a very bad turning point in the thing. I happened to hear that in the
company of about fifty liberals in New York City. It was an 80th birthday party for Ken
Galbraith Kay Graham had Newsweek send over the tape, because the press conference was
during dinner for Galbraith They had a place set up in the Century Club where you could hear
the press conference. It was just heartbreaking. I never saw a happier crowd go into a room to
hear a speech and a more dejected crowd come out of that room People weren’t even talking to
each other. They were trying to get their wraps, or whatever it was, and get away from
everybody else. It was the most disastrous thing I ever heard. He got slaughtered. It was a
shame. It was a Bush victory, and I couldn’t have been sadder about it. In the meantime, you had
Kennedy approved, and then Bush went on to complete the job.
Now we’re in the middle_ of the second Bush campaign and the first Clinton
campaign. Last Monday, Dave Rosenbaum of the New York Times called and asked, ”Where are
the hberals at this convention? Why aren’t you here?” I said because I’m physically incapable of
getting around Madison Square Garden. What are you -I mean – crazy? I can hardly walk. It’s
not a boycott. We have to try and win with Clinton and Gore. We talked for a while. What he
printed was – I did say this-he said, “Aren’t you saddened by the fact that it’s the more moderate
group who now has control of the party?” I said – and he quoted this – “Of course, I feel
disappointed in the move of the party to the right.” And then I said, “But, they are so much better
than Perot and Bush, Perot still being in, but I can only say I’m for them, and I’m for them•with
enthusiasm, at least enthusiasm against the other two.” Well, he only printed the thing to the
“but.” Well, that’s all right. He was making a point that that saddened the hberals. Then he put
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in a couple of sentences very laudatory of me which he was trying to be nice and friendly. I am
disappointed, but I still-think we have to win. I do think there’s a good chance. I don’t know if I
told you but – I guess I did in some interview I had recently. I said Perot’s not going to get an
electoral vote. Did I say it to you?
Mr. Peck:
Mr. Rauh:
Mr. Peck:
Mr. Rauh:
We talked about this before the tape was on.
Oh, really.
I think you also said that you had done it in an interview, too.
Now everybody can say, “Oh, well, you made it up after the event.”
But, I do think I said it on tape a couple of times before. Anyway, it doesn’t matter. I never
thought Perot was a serious candidate. It just happened a lot swifter than one would have
predicted. You would have predicted he’d let it go downhill a little while before he got it. He got
out when he had enough people still for him ihat there are people who are sore that he got out. If
had waited another week or two, he probably would have gotten out with people less angry at bis
getting out.
Mr. Peck: Would you have ever imagined that Clinton would have been as
successful campaigner as he was this year after his ’88 convention speech?
Mr. Rauh: No, and I thought it was cute the way he started bis speech last
night, saying that he wanted to get the nomination, he wanted to be able to continue bis speech of
four years ago. I thought that was a deft touch. I thought it was a good speech; although the best
speech of the convention was Cuomo’s without any doubt. I thought Clinton and Gore both made
good speeches. I think they will run credible campaigns. How far Clinton goes to the right I
think has yet to be seen. I just don’t know.
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Mr. Peck: One of the big events of ’89, of course, was the Court’s flag burning
decision. It inspired the President to go out to the Iwo Jiina memorial and call for a
constitutional amendment. Had you ever seen a President do something like that?
Mr. Rauh: I can’t quite recall the equivalent of that. He’s loose with
constitutional amendments. He has no feel for the greatness of the document, that you don’t
screw around the e dges of that document. He ought to be more careful. He’s veto happy. He’s
constitutional amendment happy. Abortion – he wants one; balanced budget, flag burning.
They’re not things that one makes amendments out of. Our Constitution is too great a document.
Why Ben Franklin was so much smarter than George Bush, I don’t know, because he lived two
hundred years earlier. Those guys were smarter because they had the essential principles that
have stood the time. There’s nothing in the kind of amendments – I think there are two more that
Bush is for. At least the three are so obvious. So I am really quite shocked. I think Brennan was
the great leader there, and I think he still is. What’s going to happen with Brennan as a
spokesman for bberalism remains to be seen. He’s in the hospital today for tests, is what the
hospital says. When an 86-year old frail man with a stroke and throat cancer goes to the hospital,
all you can do is pray.
Mr. Peck: I actually saw him last week. Tiris was a dinner at former Senator
Mathias’s home. He was sort of talking about how his replacement on the Court, David Souter,
was someone that he thought would be capable of growing into the job. Now, he’s always been
an optimist about these things, and he frequently says he has lunch with him What was your
reaction when first, Justice Brennan announced his retirement and, then, later when we had what
was called the stealth candidate, David Souter, nominated?
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Mr. Rauh: My reaction when Brennan got off was one of absolute desolation.
He was a great, great judge. Before we finish with your question, may I ask you if we have ever
discussed his reaction to the Rehnquist elevation?
Mr. Peck: No, we haven’t.
Mr. Rauh: You may want to insert it back there, because I want to put it right
on the record that I hope you will do the first editing, taking out when I’ve repeated and when I’ve
screwed up something. Since it’s you, just feel totally free to do that. Then give it to me, because
I really don’t feel up to do the whole job. You can also move stuff around in a way that helps you
chronologically.
What happened was that Brennan made a statement that Rehnquist would be all
right as Chief Justice, a pro-Rehnquist statement. I went to the office and I wrote a handwritten
letter, with no copies, to Brennan. I said something like, “Dear Bill: You have every right to say
what you did, but I just want you to know that the people who believe the most in you and in
what you are, are fighting this, and this was a terrible blow to us in the morning paper. You don’t
have to respond. You don’t have to write me anything. You don’t have to call me. I just feel like
I want you to know how it’s being interpreted, and how much it hurts the people who love you
the most.” The next morning I hadn’t gotten in the office, I walk in, my secretary says Justice
Brennan has called twice. I called him back, of course, immediately. He said that was a very
fine letter, “but you don’t know how bad Burger’s been. You don’t know, you don’t understand
what this Court has gone through with Burger.” He must have torn Burger limb from limb. I
said, “Just look, that doesn’t mean we should give up our fight against Rehnquist.” “Of course,
you shouldn’t give up the fight.” He never said another word. He had a vengeance about Burger.
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There are two letters I’m referring to. I sent him a copy of my piece in the North Carolina Law
Review about an unabashed hberal looks at a half century of the Supreme Court. He wrote me
the most lyrical letter. That’s what I was looking for, but I don’t have it. It may be in my papers.
I don’t know where it is, but I just -couldn’t locate it. The letter I did locate was one where he
thanked me he says for getting him the Four Freedoms nomination. I didn’t get it for him
Nobody has to get anything for Bill Brennan. He’s the most revered guy by liberals in the world.
It’s a lovely, beautiful, modest letter and I treasure it. In the letter he wrote me on the North
Carolina piece, he was lyrical on how good it was, and so I put it away somewhere. When I saw
him the next time, I said, “Bill, I guess you wrote me that letter in confidence, to say a piece is
wonderful that dumps all over Burger.” He said, “I didn’t write you that in confidence, I don’t
care what you do with it.” If you ever come across it, it’s not confidential. I could hardly believe
it. He said, “For Christ’s sake, I mean it.” He didn’t mention Burger in the letter, but those pieces
are very anti-Burger. Also, he had really blown that morning when he had gotten my letter about
Rehnquist. I believe him He never said another word after that, but the damage had been done.
Rehnquist had gotten the benefit of Bill Brennan.
I interrupted to go back to the Rehnquist appointment. You had me on Bill
Brennan’s resignation where I said I was really desolate. You asked how I felt about Souter. I
thought there was a trick, having a stealth candidate for the Court, where you don’t know. You
remain stealthlike during the nomination process, and he was temble. Then, two weeks before, I
guess, the end of his second term, he makes quite a shift. I’m happy with the shift. Nothing
would please me more than to have twn out as Benjamin N. Cardozo, but I think two weeks is
not a summer. I have to see what it ultimately comes to.
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There was a question, you may have asked me. I’ve been asked by several people
whether there had ever.been an opinion quite like this where it is attributed to three people, and
not just one person plus other people – what do they do – consent?
Mr. Peck: Concur.
Mr. Rauh: Right. There is such a case. Do you know the case?
Mr. Peck: Well, there’s Cooper v. Aaron.
Mr. Rauh: Yes, that’s the one. Maybe we discussed this.
Mr. Peck: No we haven’t. On that very day I got a call from a reporter, of
course, asking the same question.
Mr. Rauh: I didn’t remember it. I remembered it only in reading something of
Brennan’s from this lecture I have to give in which it not only said Brennan had written it but it
made that point in Cooper v. Aaron, so maybe you remembered it. I didn’t.
Mr. Peck: I remembered it because I had written about it.
[Side B]
Mr. Rauh: I had no memory of it. It made perfectly good sense. That would
have been a Frankfurter touch, although I have no way of knowing. Do you know whose idea it
was?
Mr. Peck: I don’t. The evidence was that somebody raised it first and almost
immediately everyone agreed that it made perfect sense. It never quite revealed whose idea it
really was.
Mr. Rauh: Well, it’s wonderful. When I read it in here, I can’t remember if
they were implying that Brennan did it, or what. Brennan was pretty new on the Court then, in
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’57. If he got on in ’56, this was ’57. Brennan is frail. I had lunch with him a few weeks ago,
and he made the point that he was sorry he got off. I don’t know that I really trunk that makes any
sense. He’s so frail. Ifhe can’t give a lecture, he can’t go through all the terrible, temble strain
that the Court was. When I went to see him to ask him to make a speech, he said he gets there at
7:30. The one thing about when you’re old and frail, and I’m only getting there but I’m pretty
close, it’s so hard to get going in the morning. I waste all morning; I can’t help it; I amjust so
slow. I do feel he’s one of the great people in my life, and I’ve had a lucky life.
Mr. Peck: I know that I guess I had seen him in April, and he actually looked
like he was more vigorous than he had been about a year earlier.
Mr. Rauh: I think you told me that.
Mr. Peck: I was very pleased to see that. When I saw him last week, he was
looking considerably weaker than he had just in April. You could iell he was having difficulty.
Mr. Rauh. As late as this, within maybe – certainly – 60 days, he told me he
was sorry he resigned. I think that’s good for his morale, and I hope he enjoys saying that. It’s
not true.
Mr. Peck:
and he clearly did.
Mr. Rauh:
I remember when he got off. He was looking like he needed a rest
Clearly, he couldn’t have gone on. They’re still planning to go to
Maine, Bill and Mary. They’re getting his plane tickets together, and he’s planning that. I don’t
believe he’s going to make it, and I don’t believe he should. God knows, if he’s going on any part
because of me, I don’t want him to go. I want him to live as long as possible. I’m sure Frank
Coffin feels the same way. We don’t know how to get him not to go.
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Mr. Peck:
Mr. Rauh:
Well, I think Mary’s the only one who could do that.
She will do that if it’s possible. She’s quite fine.
Mr. Peck: After, of course, his departure from the Court, one year later
Thurgood Marshall leaves the Court, and that had to be almost like a devastating second body
blow.
Mr. Rauh: We had opposed – this was no surprise. Whether anybody actually
testified for the Leadership Conference, I don’t trunk they did. There was a terrible feeling
against Thomas when he was confirmed for the court of appeals. We had – Elliott Lichtman, my
partner, had taken Thomas’ deposition in our Adams v. Richardson and all successors’ case. We
knew how bad he was from his Office of Civil Rights in the Department of Education. We knew
how bad this guy was. We were in a sense ready for it. I testified for the Leadership Conference
against him I didn’t know ai t.hai time about Anita Hill, although some other people did. I did
not know of Anita Hill until the Sunday morning when it was in Newsday by Phelps and on the
air by Nina [Totenberg]. It was only a coincidence I even knew that, because Floyd [Haskell,
Nina Toten.berg’s husband] called about lunch that next week. We had a date. Floyd called, and
when we finished talking, Nina got on the phone and said, ”Did you hear the program I just did?”
I said, “No.” She said, “Well, it’s going to be again on such-and-such a station at 11 o’clock.
That’s the first time I knew anything about it. My son Carl was the lawyer for the Leadership
Conference on the leak question. I was very proud of him He worked for Skadden, Arps that
charges such absurd fees. He did this as a pro bono thing for Ralph [Neas] and he got a little
thing in the report about clearing us. It wasn’t just not mentioned negatively, he got an
affnmative thing in the report. I’m very proud of the family performance there. Is there anything
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on the wires on that French bill?
Mr. Peck:
Mr. Rauh:
I didn’t hear anything before I left the office, so I’m not aware of it.
A lot of people say that Thomas is going to act today, because
tomorrow is the end of the period. They say it’s a good bill.
Mr. Peck:
Mr. Rauh:
Mr. Peck:
Mr. Rauh:
Mr. Peck:
Now, you heard from the Justice Department on their position?
No, what was that?
That they supported Customs.
If he asked them, I would think he’s going to follow it.
I would think so, too, but I’ve not heard anything yet. But he’s
turned out to be everything and worse.
Mr. Rauh: Incredibly bad. I think, and I really believe this, if Clinton wins,
the Court is going to be a minor factor in the future. We’ll get a young Brennan for Blackmun,
whose going to resign at the end of this year or before, at the end of June of ’93 or before. I think
we’ll get that, and some of the ones who are apparently not well, we’ll resign, we’ll get h”berals.
There’ll be problems still, but the spectrum won’t go further the other way. I think we’ve got a
good shot now, if we can elect Clinton. I don’t know how much they are going to make of the
Supreme Court. I, myself, fmd it an important part of the election.
Mr. Peck: Prospects are not nearly as good, of course, if Bush wins
reelection.
Mr. Rauh: If Bush wins, oh it really would be terrible. If he can appoint
Blackmun’s successor, that will just break everybody’s heart. The Administration is still pushing
bad judges. They’re pushing a hangingjudge from the I I th Circuit, Carnes, is that his name?
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Mr. Peck: Yes.
Mr. Rauh: Oh, say that reminds me, there’s that big ad in the Post about
Morris Dees and his Center for Poverty Law, saying he is for Carnes.
Mr. Peck: So is Frank Johnson.
Mr. Rauh: I guess there is a certain noblesse oblige there. At any rate, I wish
the Democrats would say no more until after the election.
Mr. Peck: Carnes was reported out of the Committee, but so far no vote has
been scheduled on the floor.
Mr. Rauh: Biden has refused all our entreaties to say no more votes.
Mr. Peck: Yes, that’s right. He’s been holding up the nomination for women
at the moment.
IYir. Rauh: For women?
Mr. Peck: The Administration in an election year has rediscovered that there
is another gender. He’s been holding that up until there’s been action on a few other things, but
he’s promised if he gets action on voting rights and a few other things that he’s anxious about he
will act on this, so obviously he’s not going to put a stop to nominations yet.
Mr. Rauh: I’m not clear on that, Bob. What is the position on the four
women?
Mr. Peck: He’s just basically held them up until he gets action on several
pieces of legislation that have been held up by the Republicans.
Mr. Rauh:
Mr. Peck:
It’s legislation?
Yes.
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Mr. Rauh: Well, why doesn’t he put Carnes in that Group?
Mr. Peck: Apparently , he imposed this rule after they voted on Carnes. I
think he was receiving a lot of pressure from Hal Heflin who’s a big Carnes supporter.
Mr. Rauh: Heflin, Dees, Johnson – there’s a lot of power there.
Mr. Peck: We’ve kind of run through the history as I’ve been able to put it
together. You’ve reminded me ofthings that I’ve left out. Is there anything else?
Mr. Rauh:
you’ll do the editing.
Mr. Peck:
Mr. Rauh:
One thing I want to say. If you ever want to be my friend for life,
Absolutely.
I don’t know what to say, but I just don’t feel I can do it. I will read
it after you’ve edited it because you might have missed a little nuance here or there, but I don’t
want the bulk of it. Please do it, Bob.
Mr. Peck: I will do it.
Mr. Rauh: I never hesitated when you called and said you wanted to do this,
because I don’t mind doing it. What really would kill me would be having to do the editing. It’s
going to be a tough job on you. Take your time. There’s no rush. If I’m gone, if _I should get sick
or something and can’t even read it afterwards; it’s right on the record because the record is still
running, you have my full authority to make the changes. I think that if there are ever two guys
who have similar views, it’s you and me; and if I misstated something, just please fix it. There’s
so much duplication and so much “obs” and “abs” that I just hope you’ll take your pencil, blue
pencil, and really do what has to be done.
Mr. Peck: I will do that.
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Mr. Rauh: Thank you, Bob. I just don’t feel up to it. I’m getting more tired.
