Oral History Project
The Historical Society of the District of Columbia Circuit

Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
Interviews conducted by:
Stephen J. Pollak
January 12, 2021,
February 17, 2021, May 5 and May 28, 2021,
June 17, 2021, November 11 and November 20, 2021, December 21, 2021,
February 25, 2022, March 25, 2022, and
June 9 and June 17, 2022

Preface. ……………………………………………………………………………………………………………….. i
Oral History Agreements
William B. Schultz, Esq.. ……………………………………………………………………………… iii
Stephen J. Pollak, Esq.. …………………………………………………………………………………..v
Oral History Transcripts of Interviews
January 12, 2021 ……………………………………………………………………………………………1
February 17, 2021 ………………………………………………………………………………………..40
May 5, 2021 ………………………………………………………………………………………………..76
May 28, 2021 …………………………………………………………………………………………….110
June 17, 2021 …………………………………………………………………………………………….141
November 11, 2021 …………………………………………………………………………………….173
November 20, 2021 …………………………………………………………………………………….207
December 21, 2021 …………………………………………………………………………………….240
February 25, 2022 ………………………………………………………………………………………259
March 25, 2022 ………………………………………………………………………………………….285
June 9, 2022 ………………………………………………………………………………………………323
June 17, 2022 …………………………………………………………………………………………….343
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
William B. Schultz, Esq ……………………………………………………………………………C-1
Stephen J. Pollak, Esq …………………………………………………………………………….. D-1
Publications, Congressional Testimony and Awards………………………………………………. E-1

The following pages record interviews conducted on the dates indicated. The interviews were
recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded
an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject to,
the Oral History Agreements included herewith.
© 2023 Historical Society of the District of Columbia Circuit.
All rights reserved.

The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the
Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer
attorneys who are trained by the Society. Before donating the oral history to the Society, both
the subject of the history and the interviewer have had an opportunity to review and edit the
Indexed transcripts of the oral histories and related documents are available in the
Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue,
N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of
the Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on
the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most
interviews, as well as electronic versions of the transcripts, are in the custody of the Society.

Schedule A
Voice recordings and transcripts resulting from twelve interviews of William B. Schultz
conducted on the following dates by Stephen J. Pollak:
Interview No. and Date Description of Media Pages of Transcript
Containing Voice Recordings
No.1, January 12,2021 Digital File 1-39
No. 2, February 17, 2021 Digital File 40-75
No. 3, May 5, 2021 Digital File 76-109
No. 4, May 28, 2021 Digital File 110-140
No.5, June 17,2021 Digital File 141-172
No. 6, November 11, 2021 Digital File 173-206
No.7, November 20,2021 Digital File 207-239
No.8, December 21,2021 Digital File 240-258
No. 9, February 25, 2022 Digital File 259-284
No. 10, March 25, 2022 Digital File 285-322
No. 11, June 9, 2022 Digital File 323-342
No. 12, June 17, 2022 Digital File 343-382
Historical Societv of the District of Columbia Circuit
Oral History Agreement of Stephen J. Pollak
1. Having agreed to conduct an oral history interview with William B. Schultzfor
the Historical Society of the District of Columbia Circuit, Washington, DC, and
its employees and agents (hereinafter “the Society”), I, Stephen J. Pollak, do hereby grant
and convey to the Society and its successors and assigns all of my rights, title, and interest in
the voice recordings and transcripts of the interviews as described in Schedule A hereto,
including literary rights and copyrights.
2. I understand that the Society may duplicate, edit, or publish in any form or
format, including publication on the Internet, and permit the use of said voice recordings and
transcripts in any manner that the Society considers appropriate, and I waive any claims I
may have or acquire to any royalties from such use.
3. I agree that I will make no use of the oral history or the information contained
therein until it is concluded and edited, or until I receive permission from the Society.
t z- )o’ 2>
Stephen J.
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swo TO AND SUBSCRIBED before me this orW2o2b
Notary Public
l;, by James E. Rocap III. President of
James E. Rocap III
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Schedule A
Voice recordings and transcripts resulting from twelve interviews of William B. Schultz
conducted on the following dates by Stephen J. Pollak:
Interview No. and Date Description of Media Pages of Transcript
Containing Voice Recordings
No.1, January 12,2021 Digital File 1-39
No. 2, February 17, 2021 Digital File 40-75
No. 3, May 5, 2021 Digital File 76-109
No. 4, May 28, 2021 Digital File 110-140
No.5, June 17,2021 Digital File 141-172
No. 6, November 11, 2021 Digital File 173-206
No.7, November 20,2021 Digital File 207-239
No.8, December 21,2021 Digital File 240-258
No. 9, February 25, 2022 Digital File 259-284
No. 10, March 25, 2022 Digital File 285-322
No. 11, June 9, 2022 Digital File 323-342
No. 12, June 17, 2022 Digital File 343-382
This is the first in a series of interviews of William B. Schultz conducted by Stephen J. Pollak on
behalf of the Oral History Project of the District of Columbia Circuit. This interview was
conducted on January 12, 2021.
Mr. Pollak: Good morning, Bill. This Tuesday, January 12, 2021. This is the first interview
in your oral history being sponsored by the Historical Society of the D.C.
Circuit. I am in my home where I am isolating with my wife during the Covid
era, and my understanding is you’re in your home in D.C. isolating as well with
your wife.
Mr. Pollak: Why don’t you give us your full name and the date and place of your birth.
Mr. Schultz: My full name is William Barnett Schultz. Barnett was my mother’s maiden
name. I was born in Bloomington, Indiana on March 16, 1948.
Mr. Pollak: What are your earliest memories of that coming out of being born and entering
the world in Bloomington, Indiana?
Mr. Schultz: We moved from Bloomington, Indiana when I was in kindergarten. There is a
demarcation of that time, and anything I remember in Bloomington I know is
before I was five or five and a-half. I have a smattering of memories. There were
some kids next door who were a little bit older than me, and I remember them
playing the Korean War, pretending to be soldiers in the backyard. I remember
going with my mother as she campaigned for Adlai Stevenson, I guess in 1951, in
very rural parts of Indiana. Not necessarily very friendly to a Democratic
presidential candidate. I have clear memories of playing with friends up the
street. All my parents’ friends were professors at Indiana University.
Mr. Pollak: What was your family doing in Bloomington?
Mr. Schultz: My father had gone to law school and then after law school, he had gone into the
Army in World War II. After four years in the Army, he had come to
Washington, D.C. He went to Yale Law School, and in those days, he told me
approximately two-thirds of the graduates went into government and that had
always been what he wanted to do. After service in World War II, he and my
mother moved to Washington, D.C., and he worked for the Federal Power
Commission as a lawyer in their General Counsel’s Office. But it was the time of
the McCarthy era, and for him it wasn’t a good time to be in the government.
He had a friend from law school, John Frank, who had gone to teach at Indiana
University. John called him and said, “Would you be interested in being a law
professor here?” I am not sure it was something he had ever thought about, but
he went and interviewed for the position. It was a very small, kind of exciting
faculty in those days. So he and my mother moved out to Bloomington, Indiana.
My mother was from New York City, so it was quite a change for them.
Both my brother and I were born there, and my parents loved it. They loved the
university life and the close friends they made. But they also really loved
Washington, and always had the idea of coming back to Washington.
Mr. Pollak: Did you remain in Bloomington long after you were born?
Mr. Schultz: We were there until I was in kindergarten.
Mr. Pollak: I see.
Mr. Schultz: I’ll tell you a funny story about our leaving Bloomington. I remember when I was
in kindergarten telling my teacher that my family was going to move to
Washington, D.C., and her reaction to that was, “Oh no, you have to be wrong.
You’re just a little kid. If you were moving and leaving, I would know about
that.” I remember the satisfied feeling I had the day we were going to move. My
father came in to pick me up and told my teacher this was my last day, that we
were moving to Washington, D.C. I’m sure I didn’t say anything, but I remember
being very satisfied by that.
My father was a teacher at the university, and he used to come home for
lunch every day. I was always pretty mechanical, and I remember one day
apparently my mother was down in the basement doing laundry and I got up on a
chair and locked her in the basement. And, for whatever reason, I wouldn’t let
her out or didn’t know how to let her out. Fortunately, because my father came
home for lunch, he was able to rescue her.
There is a memory I barely have, and I don’t know whether I remember
from having been told the story or actually remembering the incident. But my
father in the summers did various jobs. For example, one summer he went to
D.C. and worked at Covington & Burling as a law professor-in-residence.
One summer we went to Florida where he taught summer school at the
University of Florida.
Mr. Schultz: These were in the days when parents were a lot less attentive about auto safety.
Apparently, he stopped somewhere to do an errand and left me in the car at age
two-and-a-half or three, and went into the store or wherever, and I climbed into
the front seat. This was a post-World War II car, and it was very bare. I was able
to climb under the dashboard where all of the wires were, connect some wires,
and completely burn out all the wiring in the car, without getting hurt,
fortunately. My mother had to take my brother and me home in an airplane while
my father got the car fixed. I guess those are some my memories.
Mr. Pollak: Say a few words about your grandparents. Where were they born, and were they
part of your early life?
Mr. Schultz: My father grew up in Cincinnati, Ohio. Both of his parents were immigrants
from Austria and from what at the time was Russia. They both came over when
they were very young with their families. My grandfather went to school until he
was maybe thirteen, when he was kicked out of his house because of an incident
that involved firing a gun near his half-sister, who was not hurt. He ended up
sleeping on couches at friends of his father’s.
Mr. Pollak: Is this in the U.S. or abroad?
Mr. Schultz: This is all in Cincinnati, Ohio. My grandfather was banned from the house by his
stepmother – classic evil stepmother.
My paternal grandmother was the oldest of nine kids who immigrated,
and she went to school until the second grade. She then had to work in a factory
in order to help support the family. Other kids in her family received more
education. When my father went to college, he went to Yale University, and he
taught her to read and write so she could correspond with him because she
otherwise wouldn’t have known how to even write a letter.
My grandfather had a lot of different jobs. When I knew him, he
managed apartments and sold real estate. My father’s upbringing was very
My mother’s parents lived in New York City. They both were born in
this country. My grandmother’s father was a very successful businessman and
was fairly wealthy. My grandmother’s parents, I think, had been from Germany.
My grandfather’s parents were Jewish, and I was told they were from England.
But they had been in this country for a long time. My grandfather’s father died
when he was eleven. So he never went to college, although he was very, very
intelligent and the family always said he had a photographic memory. He even
saved some papers he wrote and projects he had done in school, which I
remember reading – they were very impressive.
My grandmother on the other hand went to Columbia University. She
was the only one of my grandparents who went to college.
Mr. Pollak: I see. What were the names of your grandparents?
Mr. Schultz: On my father’s side, it was Max and Goldie. Max Schultz and Goldie Wise, who
became Goldie Schultz. Two good Jewish names.
On my mother’s side, it was Rosalind and Harold Barnett. She had been
Rosalind Lustberg.
Mr. Pollak: In your home you had one sibling, a brother. Is that right?
Mr. Schultz: I had three. I had a brother who was born in Bloomington, Indiana, and two
sisters who were born after we moved to Washington, D.C.
Mr. Pollak: I see. What were the family politics and activities and interests as you saw them
in your youth?
Mr. Schultz: We lived in a neighborhood in Virginia called Hollin Hills. It was a neighborhood
of modern homes at the time. The architect was Charles Goodman, who built a
number of communities around D.C. But my theory was because of these
modern homes, it attracted Democrats. So, I grew up in a neighborhood of very
few Republicans. Our neighbors were very progressive. I remember when I was
at Public Citizen Litigation Group, a Ralph Nader group where I began my
career, I looked up who the members were. There were many members of Ralph
Nader’s group from Hollin Hills. There were old-fashioned Adlai Stevenson
liberals. So I grew up in that kind of atmosphere.
All my grandparents were Jewish, but my parents were not religious. My
mother’s family had been in the U.S. and in the New York area for many years
before World War II. Although her parents belonged to a synagogue, it really
wasn’t a part of their lives. They celebrated Christmas, for example, probably
Christmas and Hanukkah. But my mother didn’t have any interest in religion.
The debates I had with her were about whether is it appropriate to be an atheist or
an agnostic.
In my father’s case, I think religion was a part of his life. His family was
part of a reform synagogue in Cincinnati led by a very famous reform rabbi,
Rabbi Wise. So he went to synagogue. But just to show you how things have
changed, he did not have a bar mitzvah. He was confirmed and read from the
Torah in English. That’s where the reform movement was in those days.
He always identified himself as Jewish. When it came to religion in their married
life, my parents never went to synagogue. They sent us to Unitarian Sunday
school. I think they thought we ought to learn about religion. The neighborhood
I grew up in had many Jewish families but very few of them were practicing. I
only went to one bar mitzvah growing up, for example. Because it was
Washington, D.C., many people did not have families here and so they did not
have that kind of religious tie. And because they didn’t have families, my
parents’ closest friends almost became like family.
Mr. Pollak: And so religion was not a particularly large part of your early life, is that right?
Mr. Schultz: Right, it was not a significant part of it at all.
Mr. Pollak: And did that change later in your life?
Mr. Schultz: Well, it changed some. Skipping ahead, my wife Sari Horwitz grew up in
Tucson, Arizona, and religion was very important to her. She couldn’t imagine
not belonging to a synagogue or not going to services during the High Holy Days.
She probably couldn’t have imagined marrying someone who wasn’t Jewish, and
I always teased her that I qualified only in the most technical sense. When I grew
up, I couldn’t have told you whether the High Holy Days were in the fall or in the
spring. I think my mother did buy gefilte fish in those days. But we did not
observe – I never went to a Passover seder growing up.
Anyway, religion was important to Sari, so we started going to
synagogue, which I was actually very interested in. And we sent our daughter to
the nursery school at Adas Israel. We joined a conservative synagogue even
though Sari had grown up in a reform synagogue.
I had the overwhelming feeling every time I went to services that
everybody there knew all the prayers in Hebrew and I knew nothing. At some
point when our daughter started going to Hebrew School, there was the
opportunity to take lessons in Hebrew. And in order to be able to participate, I
took those lessons. Then came an opportunity to do an adult bar mitzvah. This
was in the conservative movement. It was very common for women because
women who grew up orthodox or conservative were not allowed to do a bat
mitzvah. So the opportunity of studying for an adult bat mitzvah was available to
women but it had not been for men. This was, I think, the first time maybe any
conservative synagogue in this country had an adult bar mitzvah class.
I studied with a group of men for two years and then our class had a bar
mitzvah where I read from the Torah and led some of the prayers.
The result was that I enjoyed being in synagogue. There were times when
Rachael, my daughter, and Sari, my wife, and I traveled to Europe and went to
synagogues there, and I actually knew enough that I could participate in the
prayers. It was just quite a remarkable thing to think that Jews all over the world,
on certain days, were saying the exact same prayers.
Mr. Pollak: When were you bar mitzvahed?
Mr. Schultz: I started classes when I was at the Department of Justice, I think, roughly the late
1990s. I think I had my bar mitzvah in 2003 or 2004. It was very close to when
my daughter had her bat mitzvah.
Mr. Pollak: Bill, did you attend public school in Hollin Hills?
Mr. Schultz: Yes. As I said, we left Bloomington when I was in kindergarten and I ended
going to three different kindergartens. There was a public school, Hollin Hills
Elementary School. I attended that school, William Cullen Bryant Intermediate
School, and Groveton High School. So public school all the way through.
Mr. Pollak: And were those schools integrated?
Mr. Schultz: That’s a great question. Not initially. I think probably in grade school there may
not have been any Blacks who lived close enough. In intermediate school, which
was seventh and eighth grades, it was not integrated. The intermediate school
was on Quander Road. I think the Quander family, who were African American,
probably owned all that land at one time, and they still lived in that
neighborhood. But Tony Quander was not permitted to go to my intermediate
school. By the time I got into high school, it was integrated. I don’t remember a
great announcement – it was an organic thing from my perspective. But there
were a number of African American kids in the high school who were very much
in the minority.
But I’ll tell you one story that shows how the times have changed. I was
active in student government and a year ahead of me was an African American
student who was vice president of the student government and I think his senior
year and my junior year, when I had been elected treasurer, there was a state
convention for student governments. Virginia at that time had two separate state
conventions. One was for predominantly black schools and one for
predominantly white schools. We were predominantly a white school, so we
went to the one for predominantly white schools in southern Virginia.
Arrangements were made for all of us to stay in the homes of people
there. But there was no private home for Ray Barber, the African American vice
president of our high school, to stay. None of the people who had homes would
allow him to stay with them. He ended up staying in a hotel to attend this
convention while the rest of us were in private homes. And I do remember so
many interesting conversations about integration. This meeting was for schools
in the entire State of Virginia. A lot of these students came from places that still
were devoted to segregation.
Mr. Pollak: Can you place when you were doing that in relation to massive resistance
following the Supreme Court’s decision in Brown v. Board of Education?
Mr. Schultz: As you know, Brown v Board of Education was decided in 1954. This was
eleven years later, in 1965 and when massive resistance was at its height. I
remember conversations where some of these kids were just totally negative
about integration and how awful this was. I remember another student from a
school in a progressive area near us, Fort Hunt High School, who said, “Well, I’ll
tell you what happened when our school integrated. Our sports teams really
improved – our football team became one of the best football teams in the state.”
This comment would seem inappropriate today, but he was trying to relate to
these kids in a way that they could accept.
I was aware of massive resistance, obviously. I remember my parents
talking about people who took their kids out of public school because the schools
weren’t integrated. For me, I just don’t remember it being a dominant thing. I
knew my parents favored integration. I remember the Martin Luther King March
on Washington was 1963. There was some interest among a lot of us in going
but I remember my parents saying, “We’re too afraid there may be violence.” So
we did not make the trip into Washington.
Mr. Pollak: Were you a reader as a young person?
Mr. Schultz: Such a great question. No, I don’t think I really was. My brother was a great
reader. But I think I was much more interested in sports and friends and outside
activities. Interestingly, when I got to college it all changed. Even though I had a
massive amount to read in college, I was always reading extra things – not just
the newspaper but books. But I really was not a reader until college. I don’t
know the explanation for that. I read books and enjoyed them, but I wasn’t
reading everything in sight or every newspaper.
Mr. Pollak: Remind me. Your brother was older or younger?
Mr. Schultz: He is a year younger.
Mr. Pollak: I see. Do you remember sibling competition? Were you displaced by the
younger babies?
Mr. Schultz: Well, I wouldn’t say I was displaced, but there was definitely sibling competition.
I remember it very well. Just to give you an example, we both played tennis. We
were both on the high school tennis team. We were probably pretty equal. But I
can remember the only time in our entire lives – and it was when I was in college
– when he beat me. He was able to beat me only one time because the
psychological advantage I had as the older brother was so great. Not only can I
remember when he beat me, I can remember my excuse for why I lost.
There was sibling rivalry in every possible respect. I think it stayed with
him probably a lot more than it did with me because the older sibling has such
advantages. It disappears eventually but there was a 13-month difference. And
when you’re young that one year makes such a difference just in terms of your
confidence and your ability to be better, particularly at sports.
Mr. Pollak: And what about with your sisters?
Mr. Schultz: My sisters were Kathy, who is seven years younger than me and Caroline, who is
eleven years younger.
Mr. Pollak: There was a big gap.
Mr. Schultz: Yes, there was a big gap and that was a very different relationship. I think I can
say they just adored their older brothers. And we took care of them. We even
learned to change their diapers when they were infants. We were very proud of
them and played games with them. It was a wonderful relationship. When I went
to college, Caroline was really very young. I wasn’t at home when my younger
sisters were growing up, but it was a great relationship. It always made me want
to have a girl and made me feel very lucky to have a girl when I had my own
Mr. Pollak: Did your family read newspapers, would you follow current events as a child?
Mr. Schultz: We got The Washington Post. In those days, that was not the major paper, but I
guess it was the progressive paper. I remember when my parents needed to
advertise something to sell, they would advertise in the Evening Star because that
was the predominant paper. The Post was the morning paper, and the Star was
the afternoon paper. To make money, I delivered The Washington Post for years.
Mr. Pollak: On your bicycle?
Mr. Schultz: No, no. The papers were too heavy. We walked Almost everybody in the
neighborhood subscribed. A lot of people subscribed to two papers – both the
morning and the afternoon paper.
Mr. Pollak: Do you remember what you got paid?
Mr. Schultz: I remember that the charge for a month was $1.95 and I had to take around a roll
of nickels because a lot of people wanted change. I went around in person to
collect. A lot of people gave me $2.00 and wanted a nickel back. I think I made
about $40.00 a month, which was a lot of money. It allowed me to save money.
And my brother and I did it together. We did it until about the 8th grade. It
involved getting up at 5:00 in the morning. I remember that the year I stopped
doing it, my grades were spectacular. I had all that extra time, not to mention
extra sleep.
I think I read the newspaper, but I didn’t read it every day or obsessively.
In terms of the conversation around the table, it was very much politics just
constantly, and many arguments about politics. I remember when I had my first
appellate argument and my wife asked, “How do you do this? This looks so
difficult and combative.” I said, “This is nothing like sitting at the dinner table
when I was growing up.” I was well prepared for confrontations with lawyers by
my experiences growing up. My mother probably more than my father was the
one who challenged us. My mother was tough.
Mr. Pollak: What place did World War II play in your family?
Mr. Schultz: It’s a good question. I was born in 1948. My father fought in World War II, but I
don’t remember many conversations about World War II or anything really very
significant about World War II. I know my father after the war got some books
because of the GI Bill that he used to study for the bar exam. They were
interested in just sliding back into life after World War II.
Mr. Pollak: Did the family travel?
Mr. Schultz: Not so much. We never traveled abroad, except for one trip to Mexico when I
was in college. We would travel to Cincinnati to see my grandparents by car, at
least from Indiana we would travel by car. And we traveled to New York City to
see my mother’s parents. We would go to the beach, Rehoboth Beach, in the
summer. When I got to high school, we had some friends who had a house in
New Hampshire, and we started going there over Christmas vacation to ski. But
the travel was all within the eastern United States and to Ohio to visit with my
grandparents. I didn’t fly in an airplane until college.
Mr. Pollak: And both your parents went to college. Where did they go?
Mr. Schultz: My mother went to Vassar College and my father went to Yale. And then my
father went to Yale Law School.
Mr. Pollak: I see. Who were your early role models moving through high school up to
Mr. Schultz: It’s a good question. I always had the greatest admiration for my father. No
question about that. You will be interested in this. I remember really admiring
John Jones. John Jones lived in Hollin Hills for a period of time.
Mr. Pollak: Who was that?
Mr. Schultz: John Jones. I think you knew him at Covington & Burling.
Mr. Pollak: Yes.
Mr. Schultz: John Jones did a lot of different things. For example, he bought a table saw and
learned carpentry. There was a point when my father and he built a fort behind
our house – a little kids’ fort – and they did it with bricks and mortar; there was a
wood roof and shingles on it. He did that with John Jones because John Jones
could do that sort of thing.
John Jones went on to master computers and learned how to fly a plane.
He wrote crossword puzzles and had one published in the New York Times. At
one point he ran for the school board, and my father was his campaign manager,
but he lost by something like 28 votes. I really admired John Jones because he
could do so many different things. I don’t think I had particular role models. I
had some excellent teachers, but I never really saw them as role models.
Mr. Pollak: Did you do well in school?
Mr. Schultz: Yes, I did well. I wasn’t first in my class. I was excellent at math and some other
subjects. I did well and I did better as I went along. In grade school, I got
terrible grades in handwriting and art, which were on your report card. As things
went along, the things I wasn’t good at became less important.
Mr. Pollak: Let’s look at the high school time. How big was the high school? What were
your activities?
Mr. Schultz: I think there were 380 kids in my senior class in high school.
I always was on the tennis team in high school, and we had a very good
tennis team. We were undefeated in my senior year and we were very strong
most years. I think I was on the JV team my freshman year and then on the
varsity team after that. I was the most valuable player in my senior year. I
wasn’t the best player, but I won the most matches.
We would play singles and doubles. I was pretty short – I grew late. Net
was never really my game. I always played back. My doubles partner, Alex
Sinaiko was the same. I remember we were always retrievers – we were not
players who rushed to the net and put the ball away that way.
My other major activity was the debate.
Mr. Pollak: How did you get into that?
Mr. Schultz: I really don’t know why. I got into it freshman year. Freshman year my Latin
teacher was also the debate coach, and she was spectacular. Unfortunately, she
didn’t stay. I think my school always had a good debate team and I always spent
a lot of time on debate. It required tremendous preparation. Ultimately, you
would have a partner each year and you would go to debate tournaments. You
would do the opening statements and then the questions back and forth. Then a
winner was always declared. My senior year we were a strong team but did not
win the league.
I remember we would separately attend tournaments, and there would be
these guys sort of strutting around because they believed they were so
accomplished. But, for whatever reason, my senior year, my debate partner and I
had spectacular results in the tournaments. I think it was because we had a novel
way of arguing the question. In the league, everybody knew what we were doing
but we took people by surprise in these tournaments. We won some major
tournaments and brought back to the school some very large trophies.
Mr. Pollak: Did you travel around in Virginia?
Mr. Schultz: I remember there was one in Richmond, so maybe that would be the whole state
or whole region and we won that tournament. There was one in New York and to
our shock we won that tournament. There were others. Anyway, that was a fairly
big part of high school as well.
Mr. Pollak: Did you attribute to that debating experience an affinity for law later in life?
Mr. Schultz: Maybe. I think my interest was triggered because my father was a lawyer, and I
had so much respect for him. A lot of his friends were lawyers. And maybe
because of the debating. There wasn’t anything I knew that would say I wasn’t
suited to be a lawyer. The truth is, I think I assumed I would be a lawyer, unless
something better came along. But I didn’t know I was going to be a lawyer. It
was always in the background as an option that maybe would make sense for me.
Mr. Pollak: How did you spend your summers in high school?
Mr. Schultz: At camp. There were four kids in the family, and frankly I think we drove my
mother crazy. So, my parents had to figure out something to do with us in the
summers. They started sending us to Camp Shohola, which was a Quaker camp
run by the headmaster of Sidwell Friends School in Washington, D.C. I started
going when I was twelve years old. The year before we went to Camp Letts in
Annapolis for a couple of weeks. Then we went to Camp Shohola.
We were supposed to go for a month, and I just loved it. So did my
brother. I remember my parents saying, “Well, if you want, you can stay for two
months.” For the next three years, I was a camper and then at age 15 I became a
counsellor at that camp.
Mr. Pollak: Was it rural – you know around water, swimming?
Mr. Schultz: Yes, it was in the Poconos in Pennsylvania, a five- or six-hour drive from D.C. It
was on a lake where you could swim and canoe. The lake wasn’t big enough to
do water skiing or sailing. There was tennis, crafts, and other sports. It was a
whole new group of friends.
Mr. Pollak: A boys’ camp?
Mr. Schultz: It was a boys’ camp. There was a sister girls’ camp that my sisters went to. That
wasn’t a successful experience for them, and they didn’t go for as long. They
ultimately ended up going to other camps. We had dances I think every week
with the girls’ camp.
Mr. Pollak: Up to selecting a college, I would like to ask you if there are events in your precollege
years that we haven’t touch on that you would like to refer to or anything
that played a bigger role in your later life that came out of those younger years?
Mr. Schultz: That’s a good question.
There are always things that stick out. I can remember the time in 7th
grade when we were eating a cookie or something and we weren’t supposed to be
and the shop teacher asked me, “Have you been eating a cookie? You’re not
supposed to do that.” And I said, “No.” I remember everybody laughing at me
because I had cookie crumbs all down my shirt. It was a lesson in the risks of
I remember the times I really got caught like that. I remember the time
that some friends of mine and I skipped school to go see the John Glenn parade.
My father, who was very active in the PTA (the parents’ organization for the
school), had a meeting with the principal who mentioned this to him, and my
father told me how embarrassed he was about that.
Mr. Pollak: It suggests a kind of an underlying code of conduct?
Mr. Schultz: Yes. My father was very, very strong on honesty. I mean he really drilled
honesty into us. I’m not going to go through the examples. But there are a
couple of examples I remember where I got caught. It was really drilled into me
that whatever the short-term gains might be, there is never really an advantage to
being dishonest. It made me think about this a lot. There are times when you
have to make exceptions, but they are rare.
For example, my mother-in-law is very sick, and it would be really cruel
to tell her about the coronavirus. She would just worry. Those are very rare
events. I think my father, and to some extent my friends, really drilled that into
I vividly remember, of course, when John F. Kennedy was assassinated,
which was 1963, I was in Latin class —
Mr. Pollak: You were 15 then?
Mr. Schultz: That’s right. I was a sophomore in high school. We had seven periods. I was in
sixth period Latin class and I was translating – probably stumbling over it a little
bit. The announcement came over the loudspeaker that John Kennedy had been
shot. I remember my reaction was, “Oh my god! That means Lyndon Johnson is
going to be president. How horrible.” My impression of Lyndon Johnson was
that he was a southerner and that’s all we needed to know.
I was saved and didn’t have to finish my translation. Shortly after that,
while we were changing classes between 6th and 7th period, it was announced that
President Kennedy had died, which was such a stunning thing. We then went
into 7th period which was biology, and we had a test scheduled in biology. Our
teacher, Miss Wood, said, “Well, I know the president has died, but life must go
on, and you all are taking the biology test.” And I remember it was the worst
grade I got on a test in biology or maybe in anything that year.
After that, I remember I had friends who were driving at that point and we
went out in a car and just drove around aimlessly just not knowing what to do.
Then, my family all went to see the procession. After the service for Kennedy in
the Rotunda, there was a procession to Arlington National Cemetery across the
Memorial Bridge. We all went and stood along that route, still in Virginia but at
the edge of Memorial Bridge, and watched that procession, including the horse
with the unknown soldier facing backwards and so on. That was certainly a big
memory and huge event. My father had friends who were in the Administration.
Mr. Pollak: Other than your father’s military service, did he serve in government?
Mr. Schultz: No. Except as I mentioned for two years after the war, when he was in the
General Counsel’s office of the Federal Power Commission. He always had great
respect for government workers and a lot of the parents of my friends in our
neighborhood worked in the government. It’s interesting, I have so many friends
now whose kids work in Congress or are somehow connected to politics. That
wasn’t true for me when I grew up. We didn’t know congressmen or politicians
except maybe at a local level.
Even though there was a great interest in politics, we weren’t very
connected to it. As I mentioned, my father had some friends who were in the
Administration, particularly at the Justice Department. Byron White, who was a
Deputy Attorney General and then a Supreme Court Justice, was a law school
classmate; Lou Oberdorfer, who was head of the tax division, was a close friend
and best man at my parents’ wedding. I was aware of it from that level, but it
wasn’t very immediate.
Mr. Pollak: So, you were looking – put yourself back – toward graduation from high school
and thinking about college. Tell us about where you wanted to attend or where
you applied and how did you get to the college you finally attended?
Mr. Schultz: When I was about a junior in high school, it was my dad’s 25th college reunion
and he took the whole family. I think that was my introduction to Yale. This was
not a family where we wore Yale t-shirts and he didn’t talk a lot about Yale, so
the reunion was my introduction. From then on out, that’s where I wanted to go.
I applied to other colleges, obviously, not so many because people didn’t apply to
so many then.
In my senior year I had a friend from camp named Mark Cooperman who
was a freshman at Yale. I had another friend, John Nelson, who had been a
football star at our high school. I went on a trip with another friend of mine to
see colleges and we went to Yale and I remember John– this was the beginning of
his freshman year –was very negative about Yale because he felt he was working
all the time and felt so much pressure because he came from a public school. I
visited my friend, Mark Cooperman, and he was having a much better
experience. I remember when I came back and was talking to a parent I knew
and saying I was very concerned about John. She was very nice about this. She
said, “Well you have to understand, John is like my daughter. He sometimes
didn’t have the easiest time in school. You won’t have any trouble.” It was
Anyway, that’s where I wanted to go, and I was very fortunate that I got
in. I was very happy about it. The other thing I will say, from my school,
typically each year one person got into an Ivy League school. In my high school
only about fifty percent of the kids went to college. Many of the best students
didn’t look beyond Virginia. They went to the University of Virginia. My year
was a little different. There were several who went to Yale. The brightest kid in
the class went to Stanford and stayed at Stanford his whole career. He got his
Ph.D. from Stanford and was a math professor there. There were a number of
very talented kids in my high school class. But it was a bit of an unusual thing to
go to a place like Yale.
Mr. Pollak: So, it was your father’s attendance at Yale that played a big role in your choice?
Mr. Schultz: Yes.
Mr. Pollak: What are your memories of college? The interests you pursued? Extracurricular
activities? Debating – did you continue that? Writing, reading, tennis?
Mr. Schultz: I did not continue debating. I think where I started, I was a little terrified by the
academics. I went to a public school that was not very demanding. I knew that.
I had some very good teachers, but all in all, it wasn’t particularly demanding. I
was very aware that when I got to Yale, fifty percent or more of the kids were
from private schools and were very, very well prepared.
I do remember my father telling me that his experience was that the
private school kids did much better in the beginning, but it flipped after that
because they lost interest in doing the hard work a little bit. Anyway, I was very
focused on working hard and making it. And I wasn’t alone. One of my close
friends at Yale, David Miller, came from a public school in California. I
remember him telling me he didn’t buy a class ring because he was afraid he
wouldn’t make it through freshman year. He ended up being first in our class.
You were just thrown in with a thousand kids. I remember Kingman
Brewster, the president of Yale, who was a big public figure at the time. He gave
a speech to the freshman students about how many had been valedictorians and
how many had gotten perfect college board scores. It was all pretty intimidating.
Mr. Pollak: I remember those talks by deans of the Yale Law School. One always had the
feeling that I could never have gotten in if I was a year or two later.
Mr. Schultz: Yes. I’ve always had that feeling for sure with a lot of things I’ve done. They
had what they called headmasters of college. Yale was broken into twelve
residential colleges. The freshman all lived on what was called the old campus,
the original university.
In the 1930s, a wealthy benefactor named Harkness had seen the college
system at Oxford. He went to Yale and the story I heard is that he told Yale, “I’d
like to fund that here.” And Yale turned him down. He went to Harvard and they
accepted. When Yale saw what Harvard did, those in charge changed their mind
and went back to Harkness and said, “You know, we would accept this money.”
So, he financed the college system at Yale and each college had about 300 or 400
students. The freshman all lived together on the old campus. Then sophomore
year they moved to the college. Each college had a master and a dean. The
master would never be called that today and is now referred to as the head of
Ours was John Hersey, the famous writer, who had written the Pulitzer
prize winning New Yorker article on Hiroshima after World War, among other
things. He was not an academic, didn’t have a Ph.D., but Kingman Brewster
convinced him to come and be a headmaster at Yale. And Hersey then brought in
all sorts of fascinating speakers, writers, and singers to the college.
I remember once, for example, in the small Pierson dining hall there was a
little concert with a guitarist that nobody had ever heard of. I went and listened
to him and he was terrific. His name was James Taylor. And a year later he was
Hugh Sidey wrote a column on the presidency for Time magazine, and he
taught a small seminar on the presidency at Pierson College, which I took. I
remember William Styron, the great writer, came to speak. It was really quite an
amazing time.
I went to Yale in the fall of 1967. The Vietnam War protests were
starting to build. Initially I supported the war. I figured the smartest people in
the country are running the government. Who am I to second guess what they’re
doing? One of the lessons I learned at Yale was that the students had better
judgment than the smartest leaders. There is a lot more to judgment than sheer
Mr. Pollak: What led you to make that observation?
Mr. Schultz: I think what led me to make it was my personal conversion from being supportive
of the war to realizing that it was a huge mistake. And then realizing that the
president was lying to us about it.
Mr. Pollak: The Vietnam War?
Mr. Schultz: Yes. It really made me skeptical of every war and every government decision
after that. I’m not saying I don’t admire leaders who don’t do the right thing, but
it just made me unwilling from then on out to routinely accept that just because
somebody was in a high position meant that they were making the right decision.
I suspect that was a lesson not just for me but for my generation.
The Vietnam War really dominated a lot of life at Yale during that time.
Mr. Pollak: When did you begin and end your Yale attendance?
Mr. Schultz: I matriculated in the fall of 1966 and I graduated in June of 1970. In the
beginning, there were few protests, but they really increased and there were many
protests in Washington, D.C., that I attended frequently. My friends and I stayed
with my parents and we went and protested the war. I got to be very familiar
with the smell of tear gas.
Mr. Pollak: Did you attend the march on the Pentagon?
Mr. Schultz: No. No, I did not attend but I attended many, many of the marches. Eventually,
the Yale administration started facilitating them. I remember one time I went to
D.C. and Yale had arranged for us to meet with our representative and our
senators. We met with our Senator, William Spong, and our Congressman,
William Scott. We went first to meet with Senator Spong, and he came in the
room and casually sat on a desk – it was a very informal meeting – and I
remember we talked about the Vietnam War, school busing, and other matters of
national importance. I remember him telling us about constituent mail he had
gotten on a Vietnam War resolution. He said that he had gotten something like
3,000 letters from Virginians. They had split exactly down the middle. He was
very open with us about how difficult these decisions were about busing and the
Vietnam War. It was a very, very intelligent discussion.
Then we met with Congressman Scott [who later succeeded Senator
Spong] in his office. As a footnote, at some point he was voted the dumbest
senator in the Senate – the least intelligent. And his response was, “Well, I would
have brought a libel suit, but I was afraid I might lose.”
At our meeting, he sat behind his desk and proceeded to lecture us that we
were irresponsible for opposing the war. He said, “Look, I know that you’re not
representative of all college students. I know many fine college students who
support this important war.” He just berated us. Then he said, “Look, I’m really
sorry but I have to cut this meeting short because there is a very important piece
of legislation that’s on the floor of the House and I need to go speak on it. It’s a
piece of legislation that I know that you all will understand the importance of
because you’re from Virginia. It would basically expand the radius for maybe
five miles to ten miles, I don’t remember the number, of people from our dear
state who would be eligible to work in certain jobs in the District of Columbia
Anyway, we demonstrated against the war. To be very frank about it, the
draft was very much on everyone’s mind. The draft had excluded graduate
students, but that exclusion was eliminated. So, once you graduated from
college, it was unclear what your fate would be. My brother, who also went to
Yale, took Swedish because his plan was to move to Sweden. He did end up
moving to Sweden for a year, although he didn’t need to because he also got a
high draft number. Some students made plans to go to Canada.
The draft was at the forefront. If you got a high number, you probably
were going to be safe and if you got a low number, you weren’t. I turned out to
be right in the middle. But everyone remembers his draft number. (Mine was
166.) At that point, there was tremendous opposition to President Lyndon
Johnson and a tremendous effort to defeat him.
There was a very dynamic Yale Law School graduate then, Al
Lowenstein, and he used to come up to Yale and talk to groups of students. I
went to many of his talks. I remember he would try to recruit students to burn
their draft cards, which was one way of demonstrating against the war. People
would get a draft card that would have their classification and they would go and
actually burn it as a matter of protest. I remember being in a room of twenty
people and Al Lowenstein saying, “If you’re drafted, how many of you will
refuse to go?” And nineteen people in the room raised their hand. I wasn’t one
of them because I really didn’t know what I would do.
I certainly wasn’t willing to make the commitment at that time in front of
a group. Eventually, Al Lowenstein ran for Congress from a district in Long
Island. I spent a lot of that fall working for him, and he won.
There was a huge interest and huge effort in turning around the Vietnam War and
electing progressive people to Congress. We had little appreciation really for all
the things Lyndon Johnson did for health care and civil rights and so on. I think
that was because the war so dominated our conscience.
Several years later the volunteer Army replaced the draft. If you look at it
at that time (and this was after I got out of college), the student interest in the war
really dropped. I think a lot of the interest came from a concern about the nation,
but a certain amount came from self-interest.
I’ll tell you another anecdote from law school. In law school, there is a
speaker series. One of the speakers who came was Senator Edward M. Kennedy.
He gave a terrific speech, but after the speech he said to all the law students,
“How many of you are in favor of the volunteer Army [which was being
proposed to replace the draft]? Basically, the idea is we’ll eliminate the draft and
we’ll just pay those who volunteer. We’ll raise the payments enough that we’ll
just have a volunteer Army.” And he said, “How many of you are in favor of the
volunteer Army?” And everybody raised their hand. And he said, “How many of
you are going to volunteer?” And nobody raised their hand. And he said,
“That’s why I’m against it.” It was a very powerful point. He was rightfully
concerned that a volunteer army wouldn’t include those who were in a financial
position to do something else.
Mr. Pollak: What were you favorite subjects at college? What mentors did you have? How
did it mold you once you became a graduate?
Mr. Schultz: Before I do that, I’ll just tell you one other outside force that influenced my
college years. At the end of college my senior year, the Black Panthers became
very apparent on campus. They were also protesting the Vietnam War. During
this period, students at schools were taking over the libraries and various
administrative offices. It was a stressful time. At one point, there was a huge
meeting of the whole Yale community at the hockey rink on whether to go on
strike because students at this point were striking – they were refusing to go to
class. There was a meeting about it and the vote was split exactly down the
middle, for example 1,287 on one side and 1,287 on the other side. At the time,
there were then some very significant demonstrations in New Haven.
At one point, there was a demonstration against the invasion of Cambodia
that was scheduled to be in New Haven. There were concerns about violence, and
all the stores were boarded up. The Vice President of the United States, Spiro
Agnew, attacked the Yale community. Kingman Brewster, the president of Yale,
really stood up for Yale.
At the same time, the trial of Bobby Seale, a Black Panther accused of
murdering a colleague, was scheduled in New Haven. So, debates about the Viet
Nam War were mixed in with debates about whether Bobby Seale could get a fair
trial as a Black man. Kingman Brewster said publicly he didn’t think he could
get a fair trial, because he was trying to hold the student body together.
Ultimately, there was a demonstration against the Cambodia invasion, and then at
Kent State University the National Guard killed four students.
Meanwhile, Yale partially closed the college down, and the
Administration determined that all classes would be voluntary. Exams were also
voluntary. Students had the option of getting a passing grade or taking exams. I
took all of the exams because I thought it was actually kind of ridiculous. It didn’t
seem to me like much of a sacrifice for the students to refuse to go to school. It
didn’t seem like the right way to demonstrate against the war. There was just
tremendous turmoil in those years. On the college campuses students were really
focused on the Vietnam War.
The one other thing I should also mention before we go to the academics
themselves is football. Football was a very big part of Yale. We went to every
football game and had excellent football teams. My senior year, there were three
players who were drafted into the pros, Brian Dowling, Calvin Hill, and Bruce
Weinstein. Calvin Hill was drafted #1 by the Dallas Cowboys and was quite
successful in professional football. But the star of the Yale football team was
quarterback Brian Dowling, who was notorious. When he was a freshman, the
story was in one game when he was supposed to punt, he got ready to punt, but
instead ran for a touchdown. The play was called back for a penalty, and the
coach told him, “Look, I told you to punt. Why did you disobey my orders?
Now, this time I want you to punt.” Brian Dowling received the ball to punt,
looked around, and ran for another touchdown.
He was a player who did not lose a football game in high school or
college that he completed. The games that were lost were where he got injured
early on and didn’t finish. Senior year we were undefeated. The final game was
always the Yale/Harvard game. It was in Cambridge, so we all went up to that
game. Because I was a senior, they gave us very good seats near the field, on the
sidelines. We were favored to win by a lot and with two and one-half minutes to
go we were ahead 29 to 13. Then through a series of events, where the Yale
offense never touched the ball for two and one-half minutes, Harvard scored 16
points and the final score was 29 to 29. In the Yale Daily News (the Yale
newspaper), the headline was “Harvard wins 29-29.”
The event I was telling you about that was at the hockey rink where the
vote was about whether to strike and it was an exact tie. The headline after that
vote in the Yale Daily News was 29-29. Another tie.
On the academic side, after being kind of afraid at the beginning, I was a
strong student. I ended up doing much better probably in the second half and did
very, very well toward the end of college. I majored in economics. I think I was
attracted to the fact that there was a mathematical side to it and a logic to it.
I took a lot of courses in politics. I think today I probably would have had a
minor or a double major or something. I took some history, English, and so on.
I took lots of courses on the presidency and various other aspects of
politics. I remember I wrote a long paper on George Wallace’s campaign in
1968. It’s a good reminder that this country has always had twenty percent of the
people who were very, very racist and right wing. George Wallace was a
candidate in 1968. There were times when he polled pretty well, and I think he
ended up getting 14 percent of the vote. Those were my interests.
I got close to a few professors. I had a political science professor, Peter
Lupsha, from whom I took several courses. My senior thesis was based on an
idea suggested by him and another professor. At that time, urban renewal was
very popular, and the federal government was spending a lot of money to restore
urban neighborhoods in cities. But there was a lot of criticism of it because it
entailed forcing Black people out of their homes and out of the city, since the
areas being renewed were generally poor areas. An example would be southeast
Washington, which had vibrant neighborhoods. When I grew up in high school
the area had jazz bars and small restaurants that I used to take dates to. The
federal government would give cities funds to restore these neighborhoods to
bring the cities back, particularly after the 1968 riots. The idea was that this is
not a good thing because of the massive dislocation of former residents. There
were also other city neighborhoods that restored spontaneously. Two examples
were Georgetown in Washington, D.C. Half of Georgetown, the east side of
Wisconsin Avenue, had been mostly slave quarters during the times of slavery.
Georgetown had been for a time a very mixed neighborhood with a lot of lowincome
housing. It had over time become very popular and had become a very
substantial upper-class neighborhood. And Capitol Hill was a little bit like that
There are other neighborhoods around the country where this had
happened. The idea was to study why did this happen. What caused this to
happen in some neighborhoods and not in others? It was seen as a potential
alternative to urban renewal because it was a gradual and much less disruptive.
There is debate now about whether that’s such a good thing too. That’s what my
paper was on. I studied Georgetown. I did it by looking at building permits and
newspaper articles and other sources.
Mr. Pollak: There was no internet in those days.
Mr. Schultz: Unfortunately, that’s true. I spent a summer at the D.C. government building
reading microfilm and trying to identify which houses had money spent on them
for renovation or whatever kinds of projects where they would have to get
building permits. Then I spent time in the D.C. Public Library and read articles
in The Washington Post and the Washington Star about these neighborhoods to
try to figure it out.
I had done a smaller project with a friend for an economics course where
we studied the effects of urban renewal in New Haven.
Mr. Pollak: New Haven was a center of urban renewal. The mayor was big on it.
Mr. Schultz: Yes, I remember. This project consisted of interviewing New Haven residents. I
remember going into these houses. The first time I saw what they call a house
with a “railroad” design where you’ve got the kitchen and behind it is a living
room and behind is a bedroom, all in a row like a railroad.
I had another teacher named Carey McWilliams, who was the son of
Wilson Carey McWilliams who was a very famous liberal publisher of the Nation
magazine. Carey McWilliams was brilliant. The courses he taught were
seminars on political theory. He was not on the Yale faculty, but I think he was
on the faculty at Rutgers University. I took a number of courses from him and got
very close to him.
He really understood what was going on with the 1968 urban riots. He
understood that many political scientists hadn’t predicted them. And he was in
favor of the Vietnam War. He really pushed his students, including me, to
question our assumptions and to think analytically. So I was exposed to different
points of view of very, very intelligent people that I had to reconcile. It was in
the end a very good education. It was a big place, and a lot of the courses were
large courses and there really was no opportunity to get to know many of the
I remember I took a macroeconomics course and another course from
James Tobin, who was one of the most famous economists in the country. He
had been on the Council of Economic Advisers and later won the Nobel Prize.
He had office hours, and for some reason at one point I went in to see him. He
said it was the first time anybody had come in to see him during his office hours
in weeks.
I think in general the teachers were very intimidating and the students
were reluctant to bother them or to engage with them, although Tobin wasn’t that
way. Yale did have some small seminars and sometimes that allowed you to get
to know teachers.
Mr. Pollak: Did you feel that you were accepted into Yale or that being Jewish play any role
in your being part of that community?
Mr. Schultz: No, I never felt it did, as opposed to my father. He was assigned a roommate
who was Jewish. I think maybe all the Jewish kids had to live together. I think
he probably really felt it. No, I never felt that. Interestingly, when I applied to
Yale, the school asked for my religious affiliation. I wrote down Jewish, but I
could have gone either way. Because of that I was invited to some events at
Hillel, which was the Jewish organization. I still get fundraising requests from
them. But I never participated in any Jewish activities.
Although my roommates were not Jewish, many of my close friends
were. One was Don Davis, to whom I became very close. He developed into a
real radical at Yale. Freshman year he invited me to a seder in Brooklyn at his
house. It was the first time I had ever been to a seder. It was a huge family seder
with of all his uncles and aunts and cousins, and I expected a very formal event –
something to be taken very seriously. We were at one end of a long, narrow
table, and the older people were at the other end. At various times, they were all
reading and singing in Hebrew and the people at our end were talking, ignoring
them. But religion played no part of my life. I didn’t really think about it except
to the extent I might occasionally talk about it with a friend who was Jewish.
I’ll tell you one other story. There was a guy named Dean Shakley, who
was a member of an organization called “The God Squad.” The God Squad was
a fundamentalist organization with a mission of recruiting members. It was a
group of maybe ten people. Dean tried to recruit me. Apparently, I was the
perfect candidate because of my Jewish background but not being at all tied to
Judaism. This was my first introduction to the complex relationship between
Israel and fundamental Christianity.
Mr. Pollak: And that was, as you now see it, your impression of Yale, how it changed you or
how it influenced you going forward. What was the relevance of your college
Mr. Schultz: Well, I got a great education first of all. I really learned how to study. I had to
do work in high school, but I really didn’t know how to study or how to really
Mr. Pollak: How do you study? Describe it. What did you learn?
Mr. Schultz: There is nothing more than going into the library for four or five hours and doing
the work. It wasn’t any more complicated than that. I loved working in the
library. Going to the library – going to the stacks – where there is complete
I liked Yale and I got a lot out of it. I got very excited about the academic
courses and very interested in it. I think I learned a ton, and I’m sure my writing
improved. I think I learned a lot of skills.
I made good friends. I had a much closer-knit group of friends in college
than I had in high school. If I were honest about it, I think the fact that I had a
Yale degree may have counted with some people more than maybe it should
have. It certainly didn’t hurt.
Yale opened my eyes to politics. I left Yale with a strong desire to do
something in the public interest. I had no idea what it was going to be.
My roommate, Don Davis, who was a star student, could have done
anything he wanted, and he went and worked for the Associated Press for two
years after college, and then he worked for the Socialists Workers Party as an
organizer for maybe fifteen years. His work during those years was in factories. I
can remember having these discussions way into the night about all kinds of
things, but many of them deeply political. He and others were skeptical of
lawyers, although many classmates went to law school. I was determined to use
law to do something outside the traditional path.
So when I graduated from Yale, I had no interest in being an ordinary
lawyer. I didn’t really know what I wanted to do. I remember another friend of
mine, John Neufeld, telling me about Ralph Nader. Ralph Nader had gone to law
school and then he tried to fight the government from inside the system. After
that, I learned about Ralph Nader and I had enormous respect for him. It really
kind of fit me in a way. I wanted to fight the system, but I wasn’t going to burn
down buildings or do it that way. I think I was a very traditional person. My
experience at Yale totally changed the direction of how I wanted to spend my life
and what my values were.
Mr. Pollak: That’s a good place to stop.
This is the second interview conducted on behalf of the Oral History Project of the District of
Columbia Circuit. This interview of William B. Schultz was conducted on Wednesday, February
17, 2021, by Stephen J. Pollak via Zoom.
Mr. Pollak: Good morning, Bill.
Mr. Schultz: Morning, Steve. Nice to see you.
Mr. Pollak: We were last time finishing up on your experiences as an undergraduate at the
Yale College – Yale University. I wanted to ask if you had anything to add to
what we covered, or clarify what we covered in the first interview?
Mr. Schultz: I don’t think so. I think I conveyed what an extraordinary time it was to go to
college because it was the middle of the Vietnam War. There was just constant
student activity. There were labor strikes by the workers at the school. There
was the relationship between the Yale community and the Black Panthers.
Kingman Brewster, Jr., the president of Yale University was a national figure and
very successful in keeping the students from taking over the library or the major
buildings, as had happened at Columbia and other universities. I think for all
students, it was a time for rethinking everything – rethinking what the role of
government was; what your relationship was to government; and what your
relationship was to authority figures. And then, of course, it was the beginning of
drug use, marijuana, LSD, and other drugs, by college students too. I think my
time at Yale was very different, for example, than the experience of people just
five years older than I had.
Mr. Pollak: Bill, you identify changes in your trajectory that occurred in the period you were
at Yale. When you began, did you point in one direction and when you finished
did you point in another?
Mr. Schultz: I don’t think I pointed in any direction when I began. I don’t think I had any idea
what I wanted to do professionally or how I would spend my life. I just wanted
to do well academically and succeed that way. And yes, I think Yale had a huge
impact on my values and how I spent my life and my view of authority figures.
As I think it did for many, many people there.
Mr. Pollak: How did you spend your summers during college? Did you have a job or
volunteer somewhere?
Mr. Schultz: It was different in different summers. I always had a job. I taught tennis at
various times. I think the first summer I spent six weeks with a friend traveling
around Europe. I probably spent the rest of the time teaching tennis. I worked at
a law office one summer. I always taught tennis on the side.
My junior summer I worked on my Yale senior thesis. I had a grant from
the National Science Foundation. I spent the summer studying an area of Capitol
Hill, where private urban renewal had occurred, and Georgetown where it also
Mr. Pollak: Let’s turn to graduation. You graduated and what then? What did you do?
Mr. Schultz: I applied to law school, but I also got a grant from the Ford Foundation for a year
to do a project that was an expansion of the thesis I wrote in college. It was a
project to look at neighborhoods around the country that had experienced private
urban renewal. We studied a neighborhood in San Francisco called Nob Hill; a
neighborhood in Cincinnati; we studied the two neighborhoods in Washington,
D.C.; and a neighborhood in Chicago. We interviewed many residents, many
former residents, and studied the building permits. The idea was to try to figure
out why this was happening and present it as an alternative to urban renewal,
which was seen as a very destructive force, because it had so torn up inner city
neighborhoods. Remember, this was really just following the riots in cities that
followed Martin Luther King’s and Bobby Kennedy’s assassinations. There was
a lot of attention being paid to cities, how to rebuild them, and how to do so in a
way that was respectful to African American residents. We did that for a year.
We also traveled in Europe. I think I knew at that point I was going to go
to law school the next year.
Mr. Pollak: You refer to “we.” Were there more than you?
Mr. Schultz: I got married after college, and my wife and I did this project together. We wrote
a book-length report. It didn’t get published as a book, but I think there was one
article that came out of it. We submitted it to the Ford Foundation. We also
worked with a professor at Yale University, Peter Lupsha, who was very
interested in it too, and I think was part of this Ford Foundation grant.
Mr. Pollak: I see. Do you want to offer a summary of what your conclusions were or what
you found out from this work?
Mr. Schultz: It’s a long time ago. There are a number of factors. The question was “Why did
this happen in some areas and not in others?”
Mr. Pollak: Might I ask, just by way of example, what were the areas you studied in D.C. and
did it happen in D.C.?
Mr. Schultz: Sure. The two areas were Georgetown and Capitol Hill. Georgetown was classic
because it was really a very defined area which turned out to be an important
factor. The neighborhood was defined by the Potomac River, Rock Creek Park,
Dumbarton Oaks, and other park land. In the 1940s, Georgetown was a rundown
area. And earlier in its history, the eastern half of Georgetown was occupied
mostly by slaves and African Americans and the western side was a little
wealthier, but it was not a particularly attractive or expensive neighborhood.
Another factor was the architecture of the neighborhood, and there were
other factors that were difficult to describe.
There was a neighborhood in Chicago, Old Town, that got a reputation as
a place for a lot of jazz and a lot of musicians and a lot of artists, and that
attracted similar kinds of people. Of course, a major attraction was the
convenience of the inner-city neighborhoods. In the 1950s and later many
families, like my parents, lived outside D.C. and other cities and struggled with
increasingly difficult commutes. There is a lot of attractiveness to living in the
city. But we were trying to figure out why some neighborhoods had experienced
this spontaneous renewal and others had not.
Mr. Pollak: I see. So along the way you got married? Did you get married while you were in
Mr. Schultz: Right after college.
Mr. Pollak: Was this a classmate of yours?
Mr. Schultz: No, there were no women in my class at Yale. I was a member of the last all male
class. My first wife went to Mount Holyoke College. But we had been
classmates in 6th, 7th, and 8th grades. Then we went to different high schools. We
re-met sophomore year of college. Her name is Cathy Cresswell.
Mr. Schultz: Her father was the administrative assistant to Senator John C. Stennis. At the
time of the Vietnam War, this was a very interesting relationship to navigate. I
became very close to her parents and learned a lot of woodworking from her
father. We talked about politics but did so carefully.
Mr. Pollak: I think Stennis had a significant position on the committees concerned with
national defense.
Mr. Schultz: Yes, and he was a strong supporter of the Vietnam War. Stennis was a
segregationist but like a number of them, or some of these southern senators, he
veered toward defense and national policy and away from domestic politics. It
didn’t change the positions they took. Unlike the other senator from Mississippi,
James O. Eastland, who really was a rabid racist. Stennis was chairman of the
Arms Services Committee and he was a dignified old southern figure.
Mr. Pollak: Well, so you had the year of the Ford Foundation funded research and writing of
the report and in that year, you applied to law school?
Mr. Schultz: Right.
Mr. Pollak: Did you apply anywhere but the University of Virginia, which you attended?
Mr. Schultz: I applied to Chicago and Pennsylvania. The University of Virginia was very
attractive to me because of tuition. I was married so I wanted to support myself.
The tuition was $630.00 a year. They gave me a $500 scholarship.
My wife taught school the first year and then she went to architecture school. We
were able to completely support ourselves based on her salary, which was $6,000
the first year, and then what I made in summer jobs.
Mr. Pollak: Did you live in Charlottesville during that period?
Mr. Schultz: We did. In our first house the rent was $140 a month, and then we moved across
the street where the rent was $90 a month. We lived in Charlottesville so I could
walk to law school or ride my bike.
Mr. Pollak: When did you make the decision that you would go to law school?
Mr. Schultz: I don’t really know. I majored in economics. I always had in mind that law
school was a possibility. At some point in college, I made the decision. It wasn’t
a moment.
Mr. Pollak: Other than the tuition and cost of living, were there other reasons you chose the
University of Virginia School of Law?
Mr. Schultz: Not really. It was a very good law school. I grew up in Virginia. I would never
have considered going there for college. But I did not have any particular
connections or people I knew there. It was an adventure.
Mr. Pollak: Speak generally about the law school experience – the law school years. Did you
do well?
Mr. Schultz: Yes. I got good grades throughout but did extremely well during the last year and
a half, getting the top grade, which was an A, in every class. It’s interesting. A
lot of people hate law school in their first year, but I really liked it. I thought the
teachers were extraordinary, on average much better than the teachers I had in
college. I was taken by the whole process. In college, I took many English and
history courses where I read literally thousands of pages a semester. We were
always trying to keep up with the assignments. I remember in law school the first
assignment was a couple of cases. It was maybe five pages of a textbook, and I
went to my first class which was a contracts class. Stan Henderson, a terrific
teacher, gave the lecture, and as I listened, I realized while I had read the cases, I
hadn’t thought about the issues and had missed so much. It wasn’t just reading
and getting through it and maybe memorizing the material. It was stopping and
really trying to figure it out. And I loved that. I felt like I was being taught a new
way of thinking.
Mr. Pollak: Tell us about your law class. It’s diversity, the number, and whether you’ve
stayed close to those people in the years since.
Mr. Schultz: There were 280 students. There were twenty-one women and just a handful of
African Americans. It wasn’t very diverse, but that began to change by my third
year, when, I think, there were sixty women in the first-year class. So, it began to
change quickly. I made a lot of good friends in law school.
I was pointed to a public interest career, and there were only a small
group of people at Virginia who had the same idea. I don’t know that any of
them went to Washington. I haven’t kept in contact with a lot of friends from law
school. Probably more from college.
Mr. Pollak: Where did you get the idea that you were pointed to a public interest career?
That was unusual, wasn’t it?
Mr. Schultz: It was, but I was influenced by my time in college and the controversy over the
Vietnam War and many discussions I had with classmates. Public interest law
was where I was pointed when I went to law school. I had no doubt about that.
I had a lot of good friends in law school who wanted to work at law firms
– New York law firms or others. That’s not what I wanted to do. I spent my time
with a post-conviction assistance project where we went to local prisons and
represented inmates in disciplinary hearings and working for Legal Aid Society.
I ended up being head of the Legal Aid Society. I could have been head of either
organization because I think I was by far the most active student in both.
The summer of my first year I worked half the time at that project and
half the time with the Public Defender Service in D.C. I didn’t know what I was
going to do. I think I probably thought it was most likely I would do legal aid
after law school. That’s all I was ever interested in.
Mr. Pollak: What was the atmosphere at the law school? Was it a conservative place? Who
were your mentors there?
Mr. Schultz: I think the students were pretty conservative. The faculty wasn’t. I think
probably half the students were from Virginia. There were a lot of people there I
really liked. It was competitive – the students were ambitious. I did my best to
stay away from that. I didn’t join any study groups which were popular. I just
studied on my own.
Mr. Pollak: Did you serve on the Law Review?
Mr. Schultz: No, I did not.
Mr. Pollak: Was that a choice of yours?
Mr. Schultz: I didn’t try out for it because it wasn’t how I wanted to spend my time. I had
other interests.
Mr. Pollak: Were there particular professors that you marked as significant mentors to you?
Mr. Schultz: Not so much mentors. There were some I admired or got pretty close to. Stan
Henderson was my contracts teacher and I have kept in touch with him. That was
just mostly because he was such a fabulous teacher. I took a legislation course
from Alex Bell, and I worked with him on a law review article he was writing. I
took administrative law from Ernest Gelhorn, and I worked for him through law
school on his articles and books. He later became dean of Case Western Reserve
and then left teaching to join Jones Day.
He was a somewhat prominent figure in administrative law. Another
professor I became close to was Dick Howard, and he is still at the law school. I
took a seminar from him my third year for which a friend of mine, Phil Howard,
and I each did papers on the Supreme Court.
My paper was on Supreme Court voting patterns. This type of analysis is
commonly done now, but I don’t think anybody had done it then. I analyzed
voting patterns of Justices, depending on different case categories. Phil did a
more descriptive paper. We combined the papers into an article that was
published in the New York University Law Review the year following my
graduation from law school. Originally, Dick Howard was going to be a
coauthor, but he pulled out of it and Phil and I got it published. We worked on
that third year and then the following year while I was clerking.
Mr. Pollak: Did you have moot court experience? Did you try out your advocacy?
Mr. Schultz: It’s interesting. My friend, Dora Saharuni and I participated, and we won the first
two rounds but then we didn’t pursue it, probably because I felt I was too busy
doing other things.
Mr. Pollak: Did you take to it? Did you think you would become an oral advocate?
Mr. Schultz: I had done so much debating in high school. I was always pretty confident I
could be comfortable in court.
Mr. Pollak: I thought that the contemplation of oral argument before judges was terrifying
and anxiety producing, but once the argument began, I was never – I always
found that fun.
Mr. Schultz: That’s similar to my experience. I remember it was anxiety-producing until I got
the first question. Up to that point, you didn’t know what was going to happen.
But once you got the first question, then you’re focused on that and then the
anxiety dissipated.
Mr. Pollak: What were your favorite classes in law school? Subject areas?
Mr. Schultz: I didn’t have any, but I did have favorite teachers. I took civil rights, a seminar
from Julius Chambers, who later became head of the NAACP Legal Defense
Fund. I have to say, I didn’t fall in love with it. I don’t think he spent a ton of
time preparing. Then, I took a housing seminar. But the school offered very little
that connected to public interest law, which is what I was interested in.
Mr. Schultz: The classes I liked best were the ones that really had the best teachers. There was
a terrific constitutional law and federal courts teacher, Peter Low. Former
University of Alabama Dean Dan Meador, an Assistant Attorney General who
was blind, was an excellent teacher. The courses I was attracted to really had to
do much more with the teachers than the subject area. I liked tax and took
income tax and then two semesters of corporate tax from Mortimer Caplin. I
suppose I also liked it because it combined policy with some math.
Mr. Pollak: How significant in your learning experience were your fellow students who
recited and were participants in dialogue that occurred in the classes?
Mr. Schultz: I think probably very significant, not that I thought about it at the time because
we were constantly talking about legal issues and our classes after class and in
between classes and at lunch. There were some very talented students that
became very good friends.
Mr. Pollak: Did you, being a married student, influence people you socialized with?
Mr. Schultz: I don’t think so.
Mr. Pollak: Were there many other married students?
Mr. Schultz: No, there weren’t. But I don’t think it made much difference. I don’t think it was
any different than somebody having a girlfriend really. It was a very close
community. I loved that time. There were a lot of parties and socializing, and I
had a number of friends that I felt very close to. I just really enjoyed it.
Mr. Pollak: Did they go on and stay in the law for their careers?
Ms. Schultz Most had careers in law. One friend became a federal judge in Virginia, Anthony
Trenga. Most of them went on to law firms. Some of them accepted clerkships,
but their whole focus was practicing law in a law firm.
Mr. Pollak: What did you do in the summers?
Mr. Schultz: So, the first summer I received a stipend to work at the post-conviction assistance
project at the law school. The second half of the summer I worked at the Public
Defender Service in D.C. I was hired specifically to work on a case that the
Public Defender Service had brought challenging the conditions in the D.C. Jail.
I learned about the job because a lawyer in Hollin Hills where I grew up, Ron
Goldfarb, was involved in that case and he made the connection for me. I wrote
some legal memoranda, but I spent most of the summer in the D.C. Jail taking
affidavits from inmates.
I would spend the whole day and have appointments – one inmate after
another – and I would interview them and then write up affidavits about what the
conditions were like. It was interesting because every one of them told me that
they were not guilty of the crime that they were in jail for. Although many of
them admitted they were guilty of other crimes, they were quite adamant that they
were not guilty for that particular crime. Most were awaiting trial.
The most memorable part of the summer occurred when I noticed there
were some dressed up, Hispanic women visitors and some commotion. They
were visiting a couple of Hispanic men who had been arrested the night before. It
was just an unusual thing to see anybody that dressed up and also not African
American in D.C. Jail. It turned out it was the day after the Watergate break-in,
and these were wives of “the plumbers” who broke into the Democratic National
Committee headquarters. At this point, the Watergate break-in was being
reported inside the Metro section in The Washington Post.
Mr. Pollak: Who was the public defender when you worked there?
Mr. Schultz: I worked with Bill Taylor, who was one of the founders of Zuckerman Spaeder,
and Pat Hickey, the Director of the Public Defender Service. They were in charge
of the D.C. Jail case. It was an important case, pending before Judge William B.
Bryant, and it went on for many years. The name of the case was Campbell v.
Mr. Pollak: Do you think your public defender work on that case was influential in your
getting the clerkship with Judge Bryant after graduation?
Mr. Schultz: I don’t know. I don’t think it was a big factor.
Mr. Pollak: What did you do your other summers after year one?
Mr. Schultz: The second summer I worked for a law firm – Wald Harkrader & Ross.
Mr. Pollak: Oh, sure.
Mr. Schultz: I think my father thought I should try it out. I remember I had an offer to work at
the U.S. Attorney’s Office that summer, which would have been very interesting.
The firm had 25 lawyers. It was a chance to make some money and to try out a
progressive law firm. It took me years in public interest to reach the salary I had
made that summer. It was a great experience.
I worked a lot on a court-appointed criminal case with Selma Levine,
who was quite a figure. She was a single woman and graduated from Yale Law
School at a time when there were just a few women in each class. She did very
well and clerked for Judge David Bazelon at the D.C. Circuit. Even with these
credentials, there were no jobs available to her and she hung out her own shingle,
and then later joined Wald Harkrader & Ross.
Selma had a great sense of humor. When she went to law school
graduates were awarded an L.L.B. degree, although in recent times they get the
more prestigious sounding J.D. or juris doctor. Sometime during this transition,
Yale Law School sent its graduates a letter offering to convert their L.L.B. to a
J.D. for $25. Selma thought this was ridiculous and wrote a letter to the dean of
the law school, Abe Goldstein, who was also a friend of hers. In the letter Selma
offered $50 if the school would award her the J.D. degree in Hebrew. The dean
had a degree printed up in Hebrew and Selma hung it on her wall, her Yale law
degree in Hebrew. She was a delight.
We had a case representing Mr. Baker, as she always called him. Mr.
Baker was a criminal defendant who had been convicted. The jury instruction
read that if you find the elements of the crime AB&C, you must convict the
defendant. We argued that the instruction took away jury nullification and should
have read you may convict the defendant, because the jury always must have the
ability to nullify a verdict. I did a lot of the work on this and she was just an
exacting editor.
I can remember one time I had to write a letter for her, and I wrote it and
she didn’t have a single edit on it. She wrote me back and said excellent or
something. That was a remarkable thing that on a short letter there would not be
any edits. She argued the case before Judge Harold H. Greene. He granted our
motion and Mr. Baker got a new trial. I think he may have ultimately been
I also did a lot of regular law firm work. I remember the first day
somebody was taking me around and introducing me. They took me to Bill Ross,
one of the name partners, and Bill Ross said, “Oh, this is terrific. Let’s get Bill
on the consumers case.” And I thought, “Wow, how wonderful. You know it’s a
law firm but I’m going to work on a consumers case.”
Well, it turned out it was a big antitrust case involving Consumers Power.
Getting involved in that case would have probably been reviewing documents all
summer. But somehow it didn’t happen. I did a lot of small enough projects and
they were very interesting. It was a great experience. I really liked the people
I do remember I had what may be a typical law firm experience on a
Friday afternoon when we were planning to take the weekend and go to the
beach. At about 3:00 p.m., one of the partners, Joel Hoffman, who didn’t have the
best manner, walked into my office and said: “Here’s the project. I need the
answer first thing Monday morning.” No question such as: Are you available to
work this weekend? I think there were only two summer associates, and in his
defense, he didn’t have a lot of options.
I said, “Okay.” And I got to work. The first thing I did was look at the
Federal Rules of Civil Procedure and I found the answer. So, I was able to give
him the answer that afternoon and enjoy my weekend.
I’ll tell you something else I remember about that summer. I was in the
barbershop getting a haircut. It was the summer of the Watergate hearings, which
were on TV. Alexander Butterfield was called to testify as a witness and he was
asked, “Were there ever tape recordings done in the White House?” He said,
“Well, I’ve thought about how I would answer that question. Yes, the president
recorded all his conversations, and those tapes are stored at the White House.”
I’ve since read that this had all been planned in advance and the staff and
Senators knew what the answers were going to be. It looked to me like it was
spontaneous, and it certainly was momentous. I liked everything I did at Wald
Harkrader. That was a great summer job. I made a lot of friends there.
Mr. Pollak: Did your summer experiences influence you later on?
Mr. Schultz: I don’t think so. I mean, everything you do is a growing experience. But I don’t
think that they influenced me except for the fact that I met Bill Taylor. Many,
many years later when I was interested in Zuckerman Spaeder, that was a
Mr. Pollak: Right. What was your living arrangement during the summer? You had a home
in Charlottesville, but you were working in D.C. at Wald Harkrader & Ross.
Mr. Schultz: We lived in Kalorama in an apartment on 18th Street.
Mr. Pollak: I see. You rented something?
Mr. Schultz: Yes. I either biked or walked to work.
Mr. Pollak: So, what did you do for exercise in law school?
Mr. Schultz: I played a lot of tennis. I think I biked to school, but it wasn’t very far. And I
played squash.
Mr. Pollak: Yeah, yeah.
Mr. Schultz: I’ll tell you something else I did in law school. I started rebuilding Volkswagen
Mr. Pollak: You didn’t?
Mr. Schultz: I always had Volkswagens. A friend of mine told me about a book that was
written by the famous naturalist John Muir’s son, who was also named John
Muir. The title was something like: “How to Keep Your Volkswagen Alive: A
Manual of Step-by-Step Procedures for the Complete Idiot.” The manual covered
every possible VW repair. It had an entire chapter on changing a flat tire. I had
an old Volkswagen and with this book, I was able, with very few tools, to not
only tune it up but take the engine out and completely rebuild it. I also rebuilt the
front end and made many other repairs. Usually, to rebuild an engine, you have to
have a lift to lift the engine out of the car which requires heavy, professional
equipment. But this book explained that what you could do is put a jack under
the engine, release four bolts and a few wires, lower the engine, raise the car, and
then pull the engine out. This was something I enjoyed and did in the summers
and I guess during the school year too.
Mr. Pollak: Am I correct that your wife was pursuing architecture school while you were
pursuing law school?
Mr. Schultz: That’s right.
Mr. Pollak: Did she go on and have an architecture career?
Mr. Schultz: Yes. She had one more year after I graduated so we commuted back and forth
from Washington to Charlottesville. Then she worked as an architect, which is a
tough profession. She moved from practicing to teaching architecture.
Mr. Pollak: Was law school worth three years?
Mr. Schultz: That’s an interesting question. Yes, I really enjoyed law school. I know a lot of
my friends were ready after second year to start working. But I never felt that
way. I felt I was always learning. Between Legal Aid and the post-conviction
assistance project, I did a lot of work outside the classroom that was law related.
Mr. Pollak: And were those your extracurricular law school activities?
Mr. Schultz: Yes.
Mr. Pollak: Post-conviction and what?
Mr. Schultz: The Legal Aid Society. We had a Legal Aid Society.
Mr. Pollak: What did you handle for the Legal Aid Society?
Mr. Schultz: The last year I was head of it. And we had different projects. We had a housing
project and a family unit. There was a Legal Aid office in Charlottesville. A lot
of the work was assisting the legal aid lawyers there with the clients who came in.
It was mostly pretty routine work. None of it was criminal.
Mr. Pollak: But because of your post-conviction work, you had both civil and criminal
extracurricular experience.
Mr. Schultz: Well, that’s true. But most of the post-conviction work we did were
administrative hearings. We travelled to prisons all over Virginia and represented
inmates in administrative disciplinary hearings. It was a civil proceeding but in
the criminal context. We lobbied the legislature, and we wrote legislation. In
both positions I worked with their law professors.
Mr. Pollak: Do you have anything else about law school?
Mr. Schultz: No, I don’t think so.
Mr. Pollak: And what was your military status? Your draft?
Mr. Schultz: I had asthma growing up and Yale was very good about encouraging you to
document it. Every time I went to the health clinic there, they would document it
in my medical records. That was the time of the lottery and everybody who was
in college at that time remembers their lottery number. Mine was 166, which
wasn’t high enough to avoid the draft. I got the required army physical, but I was
given an out because of the asthma. But the asthma cut both ways. After college
what I really wanted to do was go into the Peace Corps. I applied to the Peace
Corps, but I had to disclose to them too that I had asthma. My asthma kept me
out of the Army, and it kept me out of the Peace Corps.
Mr. Pollak: When did you get the idea of clerking and how did you pursue that and how did
your clerkship come about? First of all, as a matter time, did you commence it
right after your graduation?
Mr. Schultz: Yes, I studied for the bar after graduation and began clerking during the
September after my graduation. Clerking was something a lot of law students
considered. I don’t remember exactly how I got the idea. It just seemed very
attractive. I think it probably connected to a vague interest I had in being trial
Mr. Pollak: Did you point toward the district court as distinguished from the appellate court?
Mr. Schultz: I did. I applied in both D.C. and Virginia, because my wife was going to have to
stay in Charlottesville. I got an offer from Judge James Turk in Virginia. The
truth is when I interviewed with Judge William B. Bryant, I was so taken by him
that I just knew that I had to figure out a way to do that clerkship. I had lunch in
the judge’s courtroom. He was just so remarkable.
Mr. Pollak: Well, put some meat on that bone. On first meeting him, what was remarkable
about him?
Mr. Schultz: Well, it’s a little hard to describe. I can’t really tell you. We talked about his
cases and about cases I had worked on. He treated me, as he did everyone, as an
equal, and he was unusually insightful. I think the reason he probably offered me
the job was because I disagreed with him on some things, which he liked.
He was completely self-effacing. For example, after the interview, he
took me into his law clerk’s office and he said to his law clerk, “Now tell him
everything bad about the job.” And he walked away. Who would do that?
He had so much personality. He was so interested in the law and what he
was doing and just so interesting to talk to. He was also interesting to talk to
about life – but I can’t really remember what we talked about in that interview. I
do know I was just totally taken with him.
Mr. Pollak: Did you take the Virginia bar?
Mr. Schultz: Yes, and as a break from studying I played tennis every day.
Mr. Pollak: You did?
Mr. Schultz: Yeah, I was at the peak of my tennis playing.
Mr. Pollak: Tell us about the clerkship or what you want to say about the clerkship in both the
experience while you were doing it and its significance to you over your law or
Mr. Schultz: I was the only clerk. Judge Bryant didn’t like to socialize with the other judges,
so he had lunch with his law clerk every day. He was very old-fashioned, and he
insisted on paying for my lunch every day. The only time I paid for my lunch
was the day after he had stayed up all night writing jury instructions. When we
went to lunch the following day, he walked out and forgot to pay for the lunch.
So, I was able to pay for his lunch that day.
We also occasionally had law student interns work for us. I remember
one time we had a woman law student and she insisted on paying for her lunch.
He was really hurt by this and ultimately, she let him pay. Occasionally, I would
say to Judge Bryant, “You have to let me pay for lunch. How about just letting
me do it this time?” He would look me in the eye and say, “I promise you; you
can pay for the lunch tomorrow.” He was such a delight.
But he was very old-fashioned. He had never had a woman clerk and he
would say the reason he didn’t want to have a woman clerk is because he cussed,
and he thought a woman would be uncomfortable with that. But ultimately, he
did have many women clerks.
His secretary was Mrs. Riggs, who had known him from their time in the
Army during World War II, and had worked for him during the ten years he had
been a judge.
Judge Bryant was appointed by Lyndon B. Johnson. He had gone to
Howard University School of Law where he was first in his class of about ten
students. After law school, he had worked for Ralph Bunche, who had been his
favorite teacher, on the Gunnar Myrdal study on race in America (An American
Dilemma: The Negro Problem and Modern Democracy).
He did that and then he went into the Army. After the Army, he was many years
out of law school and then he hung out his shingle and, I guess, represented
African American clients on all kinds of matters. He was noticed and hired by
the U.S. Attorney. He was an Assistant U.S. Attorney and was quite successful.
And then he went to the famous Black law firm, Houston & Gardner, which later
became Houston, Bryant & Gardner, and was a very, very accomplished trial
lawyer. He was also an appellate lawyer and argued the famous Supreme Court
case Mallory v. United States. His practice was mostly criminal law, and when
he became a judge he had very little experience in civil law. He was really a
spectacular judge with a very broad range of knowledge and a keen interest in the
The year I clerked was the year of the Watergate trials. As a law clerk, I
could go watch trials any time, including the trial of former Texas Governor and
Secretary of Treasury John Connally. He was charged with accepting bribes,
which was not part of the Watergate investigation involving President Nixon, the
White House, and the Department of Justice. The famous Edward Bennett
Williams was Connally’s lawyer, and a DC jury found the Governor not guilty.
I also had access to the Watergate trials before Judge John Sirica. I
would watch those trials, come back to chambers, and recount what I had seen to
Judge Bryant. He would then act out how he would do a cross-examination or
closing argument, which was always far better than what I had heard in the
During my clerkship year, Judge Bryant presided over the trial in
Campbell v. McGruder, the prison condition case that I worked on at the Public
Defender Service. I had real questions about whether I should be working on
this. I don’t know whether it occurred to Judge Bryant, but I raised it with him,
and he said, “Well, let me raise it with the lawyers.” So, he called the lawyers in
to his chambers and said, “Look, my law clerk took these affidavits for the Public
Defender Service. Here’s how I use my law clerk, but I won’t have him work on
this case if one of you objects.” Sure enough, the Corporation Counsel objected.
So, I was recused from the case.
Mr. Pollak: What did he do for help?
Mr. Schultz: He didn’t have any help. It was a trial. He didn’t really need a lot of help during
trials anyway. At one point, it was suggested that he visit the D.C. Jail, and he
asked me to accompany him. It was a surprise visit. The officials were not told
and we just all showed up at the D.C. Jail. We walked into the jail and it was a
remarkable experience. He had sentenced many of the prisoners and the others
knew who he was. It was clear from the visit that they all had tremendous respect
for him – you could just feel it.
Then we toured various parts of the jail. We toured an area called the
“Hole,” a very small room with no windows and no light where prisoners were
confined as a punishment. The jail officials had assured Judge Bryant in court
that they had stopped using the Hole, but sure enough, there was a prisoner there.
And we saw prisoners tied down in the infirmary. We really got a taste of what
some of the conditions were like.
The thing that always struck Judge Bryant during his handling of the case
was that two prisoners were confined to a cell that was 6’ x 8’. I think they got
one hour a day out of the cell. He was determined to somehow change these jail
conditions. He was very proud that he had this case for approximately twenty
years, and he had been able to keep it out of the District of Columbia Court of
Appeals. There was never an appealable decision, but he ordered many changes.
Because of Campbell and because Judge Bryant was seen as sympathetic
to this category of cases, every jail condition case was filed as being related to
Campbell and assigned to Judge Bryant. So were cases about the jail conditions
at Lorton, at the women’s detention center, and many cases brought by individual
inmates. I suggested that maybe Judge Bryant should start turning down some of
these cases, which he could do by returning them to the assignment clerk as not
related, and he agreed. Other judges weren’t as sympathetic and in one instance
Chief Judge George Hart summarily dismissed dozens of these cases with brief
He was never dismissive of any kind of case. I remember an experience
with an employment discrimination case brought pro se by a plaintiff whose last
name was Dormu. At one point, Judge Bryant was leaving chambers for the
courtroom, when Mr. Dormu barged in – in those days you could just walk into
the chambers, all of the doors were open – and he tried to talk to me. I was sort
of abrupt and said, “I have to follow the judge to go to the courtroom.” And
Judge Bryant turned around, and in this very kind voice, said “How can I help
you?” and proceeded to spend five or ten minutes talking to Mr. Dormu. Then
we went into the courtroom and later Judge Bryant said to me, “You never know
what one of those guys is going to do. You’ve got to always kind of be very
While he always treated litigants with the utmost respect, he could be
tough on attorneys. We had several high-profile trials, attended by reporters. In
one of these cases, he was being very dismissive to one of the lawyers, which
didn’t look good for a judge. This was difficult for me as a law clerk, but after
we left the courtroom, I told him I thought he appeared overly critical. After the
conversation, he completely changed his tone. As hard as it was, he was the kind
of judge you could say something like that to if it was helpful to him. He reacted
to it in a positive way.
Mr. Pollak: I don’t know that it’s really relevant to your oral history, but what do you suppose
was the element that made him not want to have lunch with the other judges?
Was there an atmosphere that wasn’t so congenial for Black lawyers or Black
Mr. Schultz: I don’t know, but it’s possible. There were a few judges that he liked, but he was
uncomfortable with many of them. Occasionally, he would tell me about
conversations that were problematic from an ethical point of view.
He had a good relationship with some of the judges on the D.C. Circuit.
For example, he had known Judge Roger Robb in private practice. He thought
Judge Robb was a good lawyer and I think he had a good relationship with him.
He was very fond of Judge Bazelon, Judge J. Skelly Wright, and Judge Charles
Fahy who were liberals on the court. Occasionally, Judge Bazelon would take
him out to lunch outside the courthouse.
He never spoke of the racial prejudices of any of his colleagues or of the
judges on the D.C. Circuit. I think Judge Bryant had some of the characteristics
of Nelson Mandela. He obviously had experienced extreme racism. He grew up
in segregated Washington. He never saw a white person other than the grocer
until he was a teenager. But I never sensed a bitterness that he harbored toward
anybody. And yet he had very strong feelings about race and some amazing
I remember one time we went up the elevator with an African American
woman who worked in the courthouse, and they started talking about Fire
Department 17 or whatever it was. When we got out of the elevator, Judge
Bryant explained that Black people had so little to be proud of that they all
remembered that the segregated Black fire department was the first to a major
fire, and this woman was still taking about it.
There was a library in the courthouse and the librarian, Mr. Juggins, had
known Judge Bryant from when Judge Bryant practiced law. Judge Bryant told
me that when he practiced law Black lawyers were not allowed to use the library,
even though it was the only law library available. Mr. Juggins would let Judge
Bryant in the library after hours so he could do his legal research.
Here’s another memory. Judge Bryant was a terrific pool player. When
he was a practicing lawyer, he would go home, have dinner with his family, go
back to the office, work until midnight, and on his way home, stop at the pool
hall on 14th Street, play pool to relax, and then go home and sleep and do the
same thing the next day. When he became a judge, he was told by somebody he
really had to stop going to these pool halls, which he did. Near the courthouse,
there was a lunch joint that had a pool table in it. So, occasionally, in the
afternoon, he would take me there to play pool, and he would give me a few tips.
He was always eyeing the guy who was running the place, hoping to be
challenged to a pool game.
Judge Bryant had many friends who would visit him at the courthouse. I
remember him saying to me one time that he knew his visitors would tell their
clients they had an ‘in’ with Judge Bryant. He once remarked: “If I had a nickel
for every friend of mine who said they had an ‘in’ with me, I’d be a wealthy
Mr. Pollak: What did you come away with, having seen D.C. lawyers before Judge Bryant,
and did you have opinions about some of them?
Mr. Schultz: Yes, absolutely. I formed a lot of opinions. For example, Brendan Sullivan as a
young, unknown lawyer had two trials before Judge Bryant, and he was
spectacular. Dellums v. Powell, was tried my year. This was a famous case that
grew out of the 1971 demonstrations against the Vietnam War during the Nixon
Administration. During a demonstration at the Capitol, Congressman Ron
Dellums spoke and a thousand people were arrested. The ACLU brought a class
action, with Dellums as the named plaintiff. Warren Kaplan tried the case, and he
did an excellent job. That was a fascinating case. It resulted in a very large
verdict which was ultimately reduced by the D.C. Circuit.
I had cases where firms like Covington & Burling were involved. The
big firms typically submitted long briefs with many footnotes that often weren’t
particularly persuasive. I learned the difference between an effective brief and a
long, well-documented, tedious brief. Sometimes the lawyers from the big, fancy
law firms weren’t so good. I also saw a lot of bad lawyers, too.
The best cross-examiner I ever saw was Judge Bryant. Sometimes when
the jury wasn’t there, he would take over the cross-examination. He had an
advantage being a judge because the witnesses are a bit more cooperative, but he
was excellent. I got to see a lot of trials.
Mr. Pollak: What was it that Brendan Sullivan did that made you consider him superlative?
What was he doing that was better than others?
Mr. Schultz: It’s so hard to describe what makes a trial lawyer outstanding, and it was a long
time ago. He had two cases. One of the cases was about a Datsun, where the gas
tank had exploded after the car was hit from behind, causing severe injuries. After
the accident the defect was eliminated in subsequent models.
Sullivan deposed the officials for the car company, and a key issue was
when that repair had occurred in relationship to the accident. Under the
subsequent repair doctrine if the revision occurred after the accident, the change
in design could not be admitted into evidence. But if it occurred before the
accident, then it could be admitted. He took these depositions and obviously the
key issue was going to be when this happened. The depositions were in Japanese
so there was a translator involved. After the deposition was taken, the deponent
reviewed it and made corrections. Subsequently the defendant made a motion to
change the date in the deposition on the ground that the deponent had made a
mistake. Under the new date the subsequent repair doctrine would have barred
evidence about the subsequent design change which could have been used to
argue that the gas tank hose had been defective. The subsequent repair doctrine
bars a plaintiff from introducing evidence about a subsequent repair because
otherwise a defendant might not make a repair fearing that the repair would be
used against it in a product liability case. On the other hand, if the repair was
made before the accident it could be introduced.
Brendan Sullivan argued against allowing the defendant to change the
date and he did a terrific job. His argument was that first, the testimony had been
filtered through an interpreter, so there had been plenty of time to consider the
question and answer it. He also argued – and this was always a lesson to me –
that in his initial review of the deposition the deponent had corrected minor
grammatical errors. His point was that these technical grammatical corrections
demonstrated that the witness had reviewed the deposition very carefully and that
it wasn’t credible that he should be allowed to correct the testimony about the
date. It was a very effective argument and he won the motion.
In my law practice, I would always recommend to deponents and
colleagues not to make any corrections unless they’re essential because if you
miss something and you make these little corrections, your meticulousness will
be used against you. After Brendan Sullivan won this argument, I think the case
Brendan Sullivan had another case where a woman was raped in an
apartment complex by a security employee. He got from the jury the exact award,
to the penny, that he had asked for. He was always well-prepared and he was a
very, very powerful advocate.
Judge Bryant heard another case where a fellow was driving down Rock
Creek Park on a perfectly bright day and a tree fell on his car and he became
paralyzed. The case had gone on for years and years. The lawyer who brought
the case had to survive defenses of sovereign immunity and various other issues
that the District raised. But he ultimately won the trial by demonstrating that the
District had been negligent in not trimming their trees, and the experience turned
Judge Bryant into a tree expert. Often after lunch Judge Bryant and I would go
for long walks around Capitol Hill, and the judge would point out where limbs
were in danger of falling because they had not been trimmed.
It was a great year.
Mr. Pollak: What work did the judge assign you to do?
Mr. Schultz: Judge Bryant needed no help with trials. He needed no help with ruling on
questions of evidence. He would rarely adjourn a trial so he could research an
issue. But he found it valuable to talk issues through with someone, and that
someone was his law clerk. I often watched the trial so he could talk to me. I had
so much other work that there were also times when I didn’t attend the trials.
Mr. Pollak: Your other work was what?
Mr. Schultz: My principal role was to draft opinions on motions for summary judgment and
other motions. I would do the research and write draft opinions for Judge Bryant
to review. For my first case, I did the research and drafted findings of fact and
conclusions of law. After reviewing my work, Judge Bryant said, “Well, I
disagree. I think it should come out the other way.” Following his directions, I
wrote the opinion the other way and gave it to him. And he said, “You know, I
think you were right.” So, he reversed himself again. Judge Bryant was very
open-minded in that way and very interested in working things through by
discussing them.
We would spend hours at his conference table, in a library area outside
his office. We would be talking about something and he would pull down one of
the case reports and start reading the case. He believed that if he could first figure
out the just and fair outcome of a case, the case law would support it. It didn’t
always work out that way but that was his basic approach.
Judge Bryant was not concerned about being reversed. There were some
judges –Judge Gerhard Gesell for example – who hated being reversed and would
be upset and offended by it. But not Judge Bryant. He did enjoy the few
occasions when he was reversed by the D.C. Circuit, which was then reversed by
the Supreme Court.
Mr. Pollak: Did you personally have much contact with other judges on the court during your
clerkship? Would you have comments to make?
Mr. Schultz: Judge Bryant introduced me to other judges, but I didn’t form relationships with
them. I got to know some of the other law clerks, but I didn’t form the kind of
relationships you might because I had lunch with Judge Bryant literally every
Mr. Pollak: Did you have any other activities during that year? Did you clerk for one year?
Mr. Schultz: Yes. In those days, most clerkships were for a year. Judge Bryant had this very
strong feeling that two years was too much. Two years is a lot better for the
judge, obviously, but he believed that after one year the law clerk should go out
and practice law. He always had clerks for one-year.
For many years, district court judges had three employees: a law clerk, a
bailiff, and a secretary. Eventually most judges converted the bailiff to a second
clerk and today many have replaced the secretary slot with a third clerk. The
bailiff’s role was to be a personal assistant and Judge Bryant didn’t want that kind
of attention. Instead, he would hire a student from Howard University and allow
the student to study in the office, in addition to attending to a few duties such as
opening the courtroom and filing books in the library. By my year, he had
decided to turn that into a second clerkship, but the bailiff took a long time to
finish college. He realized he had a great job, and Judge Bryant was unwilling to
tell him it was time to leave. So, Smitty stayed there for several more years after
I left. Ultimately, he did leave, and Judge Bryant then started having a second
law clerk.
Mr. Pollak: Did you have any other activities during your year as a clerk or was it allconsuming?
Mr. Schultz: I don’t remember any. I’m sure I played a little tennis, but I worked every
possible hour. There was so much work that I couldn’t possibly do it all. Judge
Bryant was an outstanding judge, but he had a failing: he was unconcerned about
delays in resolving a case. As a result, he had the biggest docket of any judge in
the courthouse.
A lot of his cases had motions pending for years. I set a goal that when I
left there wouldn’t be any motions pending that were more than a year old, which
I believe I achieved. That sounds like a modest goal, since no motion should be
pending for more than three months, in my opinion.
Mr. Pollak: You can speak if you wish about other cases you mark as significant that came
through his court during your year.
Mr. Schultz: I think I’ve given you a pretty good sense of what the job was like and the
significance of it and how he operated as a judge. It was a wonderful
relationship, I’ll say that. It really was the three of us – the judge, his secretary
Mrs. Riggs, and me. In those days, I use to smoke occasionally, and every
afternoon, Mrs. Riggs and I would smoke a cigarette in chambers.
Judge Bryant had smoked as a young lawyer and he said he quit by
putting the pack of cigarettes in the other side of his coat jacket so that when he
reached, he would hesitate, which forced him to think about his decision to stop
Judge Bryant’s chambers treated every litigant with the greatest respect.
Mrs. Riggs didn’t have the highest skills as a secretary, but she had the highest
skills as an ambassador. And that’s what he really cared about. His courtroom
clerk, Sophie Lyman, was tremendous. I think the chambers and the courtroom
operated at a very high level. And the court’s marshals stopped by occasionally.
He had great relationships with all the court employees who weren’t judges.
There were judges in the Superior Court that I got to know. One judge,
William Gardner, had been a law partner of Judge Bryant’s, and they were very
close. He adored Judge Harold Greene, Chief Judge of the District of Columbia
Superior Court, who was subsequently appointed to the federal district court. He
had the greatest admiration for Judge Charles Fahy and some of the judges on the
D.C. Circuit.
Judge Bryant was perceptive about people. I remember he told me when
he first met Justice Harry Blackmun, they shook hands and Judge Bryant said he
had a very good feeling about the new justice. He was disappointed and
surprised when in the early years on the United States Supreme Court, Justice
Blackmun voted in sync with Chief Justice Warren E. Burger. Judge Bryant use
to say, “I just don’t understand. I had such a good feeling about him.” And then,
of course, Justice Blackmun turned out to be a great judge, confirming Judge
Bryant’s instinct.
Judge Bryant never wanted to use the fact that he was a judge to any
advantage. Outside the courthouse, he would introduce himself as Bill Bryant.
He was very religious, and regularly attended a prayer breakfast led by Chief
Justice William Rehnquist. He was devoted to his wife Astarie. Personally, in
his dress, his values, and the way he led his life, he was very conservative.
This is the third in a series of interviews of William B. Schultz conducted by Stephen J. Pollak
on behalf of the Oral History Project of the District of Columbia Circuit. This interview was
conducted on Wednesday, May 5, 2021, in Washington, D.C.
Mr. Pollak: Our last interview, on February 17, 2021, concluded with your responding to
questions and speaking about your clerkship with Judge William B. Bryant in the
United States District Court for the District of Columbia. I think that you have a
few more comments to make about that.
Mr. Schultz: Thanks, Steve. Good to be here. I think I mentioned that Judge Bryant was an
outstanding lawyer. I knew this because of his career as a practicing lawyer
before he was appointed to the bench. I also saw it in the courtroom often when
there wasn’t a jury there in a trial. He would, after the lawyer was finished, often
take over the cross-examination. His cross-examinations were always better than
the lawyers who had preceded him. I may have mentioned this too but during the
Watergate trial, I would go watch and he would always want to know everything
that happened and then he would tell me how he would do the cross-examination
or how he would do the oral argument.
As a result of these experiences, every one of his clerks had tremendous
admiration for him. But one of the things that I thought was unusual about Judge
Bryant was he didn’t have the personality that is often associated with successful
trial lawyers of being very aggressive, or very assertive. He had a calm,
reflective demeanor and often listened rather than talked. He really didn’t assert
himself. But behind that was this tremendous, fierce independence. He had
strongly held views and, when you got underneath it, he wasn’t going to move
from those views. But his demeanor was very, very different. He was a great
role model both just in terms of a way to comport yourself, and also as an
inspiration to do something with the law that was useful and important.
Mr. Pollak: What do you think formed Judge Bryant? Surely, he was the first lawyer in his
family. Perhaps he was the first member of the family to go to college and go
beyond. How did he come by his aspirations and his commitments to the law?
Mr. Schultz: It’s just a great mystery, frankly. He was an only child. His father left when he
was an infant. His mother came to Washington when Judge Bryant was maybe
one year old. He lived with his grandfather and grandmother. I think he was
very studious as a child. He certainly was the first one in his family to go to
college – maybe even to finish high school.
Mr. Pollak: And my recollection was that after he graduated from law school, he held some
non-lawyer jobs. Because Blacks found it difficult to make a living in the law.
Mr. Schultz: One of his teachers was Ralph Bunche, who was part of Gunnar Myrdal’s famous
study on race in America. Ralph Bunche hired him to participate in that and then
during World War II, he joined the Army. He didn’t practice law until after his
service in World War II.
One remarkable thing about Judge Bryant is his family discouraged him
from going into the law because African Americans couldn’t make anything in
the law. They couldn’t get any business. Their business was representing people
who didn’t have money to pay them. He was not encouraged to go in that
direction at all. It all came from the inside. Both his choice of a career and his
unusual personality, which I think was closest to Nelson Mandela. They both
experienced a tremendous amount of discrimination but survived with no
bitterness. The source of that aspect of his character has always been a mystery
to me.
The other thing I will say is I was very fortunate because I stayed in D.C.
after I clerked for him. The relationship was easy to maintain, and I was in the
courthouse frequently the fifteen years after I clerked for him. So often after I
had an argument in the D.C. Circuit, I would go and see him and he always
wanted to know everything about it and he was always convinced that, no matter
what the case was, that I was going to win. He felt I was on the right side.
Mr. Pollak: Would you make some comparisons of Judge Bryant to other judges who were on
the District Court bench at the time?
Mr. Schultz: It’s hard to do. I think Judge Bryant was so unusual. One thing I will say about
him, he was not a compulsive person which was wonderful to clerk for him, but
he wasn’t perfect. He didn’t really pay that much attention to how long, for
example, a case was pending or what the status was. The clerk was in charge of
all that and how well his caseload was managed, obviously, depended on the law
clerk. It didn’t bother him, for example, if it took a long time to decide a case.
Mr. Pollak: I think that your oral history might include some memories of unusual sayings or
metaphors that Judge Bryant had.
Mr. Schultz: He had this very large number of sayings and they were endless. For example,
when I would go back to visit, he would say, “What are you doing down here on
skid row?” I wrote them down when I was clerking. Here are a few of the best:
• You choose your friends, but your relatives are thrust upon you.
• Whenever you try to put too much English on the ball you miscue.
• Where a worm comes out of an apple depends on where it goes in.
• It’s like putting a shoe on a running horse [to restore irreparable injury].
• You know what they say in the Civil Division, the Justice Department has
lost the case when the court gets to the merits.
• The greatest crimes known to mankind are committed in the name of God,
patriotism, and justice, in that order.
• That’s like going to the goat’s house for wool.
• I can’t understand a lawyer who makes a canyon out of a hairline crack.
He digs a hole for his client.
We had a tenth anniversary party for Judge Bryant the year that I clerked,
and one of my co-clerks wanted to do a presentation and include some of these
sayings. So, I gave him my whole list and he collected others. He recounted all
the sayings, and after that, Judge Bryant never used any of those sayings again.
But a whole new group of them cropped up.
Mr. Pollak: Well, so let’s fix the time. When did you complete your clerkship with the
Mr. Schultz: In the fall of 1975.
Mr. Pollak: Had you made preparations for what you would do next?
Mr. Schultz: Yes. At some point during that year, I started thinking about jobs. The first thing
I thought about was the Legal Aid Society, but I also interviewed with a number
of law firms. I met some great people but in those days, lawyers tended to stay at
the same firm for their whole career. I met many of the senior partners who had
done nothing else, which scared me. It didn’t seem like a good path.
Mr. Pollak: Why did it not seem like a good path?
Mr. Schultz: It didn’t seem very interesting, frankly.
Mr. Pollak: Right. Were you talking with your dad who was a lawyer and a law professor
and a practicing lawyer?
Mr. Schultz: I’m sure I did, but my father was always very careful not to give me direction –
that kind of advice. He probably would have loved for me to go to a law firm,
but he always said, “You have good judgment.” He really didn’t push me in one
direction or the other. Then one day, somebody from a group I had never heard
of had an argument before Judge Bryant and met in his chambers, a guy named
Reuben Robertson. He was a lawyer at Public Citizen Litigation Group. Then a
friend of Judge Bryant’s, Marilyn Moe, who had been at the Public Defender
Service, stopped by to say hello to Judge Bryant. At that time, she was the
Deputy Director of the Litigation Group. After she visited with him, she talked to
me and it sounded so interesting. So, I applied there. Interestingly, by the time I
went there, she was gone. Apparently after being a criminal lawyer, civil work
was too slow.
The director there was Alan Morrison. After law school, Alan had
worked for a New York law firm, gone to the U.S. Attorney’s Office in New
York, and somehow got connected to Ralph Nader. Ralph Nader was starting a
litigation group and Alan came to Washington in 1971 to start Public Citizen
Litigation Group. He was a very talented, hard-charging New York lawyer. I’ll
tell you about him later. He was a wonderful boss.
I called and Alan said, “Well, yeah, come in for an interview.” He said,
“How about December 31 – New Year’s Eve,” at the end of the day, “about 5
o’clock,” and I showed up at the appointed time.
Mr. Pollak: This is New Year’s Eve of 1975?
Mr. Schultz: Yes, 1975. I showed up at the appointed time and Alan said, “Well, I’m in the
middle of settling a major case, so you’re going to have to wait for a few
minutes.” In those days, he wrote a monthly report on the group’s activities. He
handed me the latest report and said, “Read this while you’re waiting.” I started
reading the description of their cases and every one of those cases was a case I
would have loved to work on. Alan finished his New Year’s Eve settlement
negotiations in a securities fraud case, and then he interviewed me. I don’t have a
lot of memories of the interview.
My great fear was that I couldn’t afford to work there. I didn’t have any
supplemental income. My wife was in architectural school, and we had no
money. I thought the salary was going to be maybe $8,000.00 a year. He told me
it was going to be $11,000.00. It was a number I could deal with even though it
was probably a 50% pay cut from clerking.
Mr. Schultz: The next stop was to interview with Ralph Nader. Public Citizen was Ralph
Nader’s organization. He was the president and the Litigation Group was a
division. There was also Congress Watch, which was a lobbying division, and
the Health Research Group that specialized in health care issues. There was a tax
group and a nuclear group. I interviewed with Ralph Nader, who was famous and
was essentially the father of public interest law, consumer advocacy. He had
gone to Princeton and Harvard Law School but had never worked as a practicing
After law school, he traveled in South America. He had a friend, I think,
who died in an auto accident. So, he got very interested in automobile safety.
Then he wrote about the Corvair and he was called to testify before Senator Abe
Ribicoff’s committee about auto safety and discovered that he was being
followed. General Motors had hired a private investigator to try to find dirt on
Ralph, but they were unsuccessful.
Ralph sued GM for invasion of privacy and then settled the case for a
couple hundred thousand dollars. He used that money to start his organizations,
one of which was Public Citizen. In law school in my torts class, the first case
we read was this invasion of privacy case that Ralph Nader had brought against
GM – this very novel use of the law. He was an ascetic and lived a very
minimalist life. I went in to be interviewed and I had a perfectly good interview,
but I felt very inadequate. I felt unable to answer a lot of his questions. For
example, he said, “So what are the most important matters facing us as a society
and how would you turn those into lawsuits?” And I remember at one point I told
him I had done some Freedom of Information Act cases, and he said, “Was the
Post Office covered by the Freedom of Information Act?” And I said, “I don’t
know.” He ended up asking me to write a memo on the Post Office issue, and it
turned out the answer was yes.
Mr. Pollak: Just to be clear, you were clerking, then and he was asking you for a memo and
you delivered a memo?
Mr. Schultz: Yes, he was asking for a little extra help on the side. He wasn’t litigating against
the Post Office.
I was just sure I was not going to get this job because I felt I didn’t have
the answers to the important questions he was asking me. And most of them I
hadn’t even thought about. But I did end up sending him that memo and I also
sent him something on five important cases that the Litigation Group could bring.
And when I returned from the interview, Judge Bryant very interested in my
getting this job. He asked, “How did it go?” And I said, “I don’t think it went
very well.” He said, “Well, how long did he interview you for?” And I said,
“Oh, it was forty-five minutes.” Judge Bryant said, “They’re going to offer you a
job. A guy like Ralph Nader wouldn’t waste 45 minutes of his time on someone
he wasn’t interested in.” And he was right. Alan Morrison eventually did offer
me the job. At some point, I talked to some of the other lawyers at the Litigation
Group. It just seemed like exactly what I wanted to do.
Mr. Pollak: So that all transpired in the middle of your clerkship?
Mr. Schultz: Yes.
Mr. Pollak: But when did you go to work at the Public Citizen Litigation Group?
Mr. Schultz: When I interviewed at the Litigation Group, there were seven lawyers there and
they were in the process of expanding it to ten. Alan called me and said, “It’s
really too much for me to have three new lawyers come on at the same time.
Would you be willing to wait until January”?
Mr. Pollak: I see. January of 1976?
Mr. Schultz: January 1976. I said, “Sure.” In the interim, I did two things. One is my wife
and I bought a house in Alexandria that we wanted to renovate. The house was a
completely rundown house and we bought it for $21,000. I was planning to do
most of the work myself, but I also needed an income. So, I got a job at a small
Alexandria law firm called Cohen, Vitt & Annand, which was a firm that started
out as a plaintiff’s environmental law firm. They did some civil rights work, they
did some prison work, which is how I heard about them. Geoff Vitt appeared in
our courtroom in a prison case. Bernie Cohen, the founder of the firm, was
famous because as a very young lawyer he argued Loving v. Virginia in the
Supreme Court. This is the case declaring Virginia’s anti-miscegenation law,
which criminalized interracial marriage, unconstitutional. I worked there for
three months. It was a wonderful experience.
Mr. Pollak: It declared the barring of miscegenation unconstitutional.
Mr. Schultz: Right. It was brought by a couple, a Black and Native American woman and a
white man. There are documentaries on this. Events in this case were actually
filmed as they were doing it. The white husband looks like a southern redneck,
but he fell in love with this Black and Native American woman. It was in an area
of Virginia where the races mixed. They went to D.C. to get married because
they couldn’t get married in Virginia. They came back to Virginia, where it was
illegal for them to live. Their house was raided. They were brought into court
for being married, and they were told by the judge, you have to get out of
Virginia or otherwise I have to put you in jail. So they moved back to D.C. where
the wife was very unhappy and, in desperation, she wrote a letter to Attorney
General Robert F. Kennedy. He referred it to the American Civil Liberties Union
(ACLU), which referred it to Bernie Cohen. Cohen was a very young lawyer, but
was doing cases for the ACLU. He won a great victory in the Supreme Court.
I made two close friends, Geoff Vitt and Steve Annand, who were just a
year or two older than me. They became lifelong friends. I participated in two or
three trials just in those three months. They wanted me to stay, which was
tempting, but I decided to abide by my commitment and go to the Litigation
Mr. Pollak: I see. Where was the Litigation Group situated?
Mr. Schultz: We were located on the top floor of the headquarters building on Dupont Circle.
Mr. Pollak: How many of you?
Mr. Schultz: There were ten lawyers and probably two secretaries. When I started in January
1976, we didn’t have computers. Everything was done on typewriters. The core
of what we did was litigation, which meant we had to deal with court deadlines.
We were always competing for secretaries because they had to type the legal
papers. I remember a year or two later, we got two IBM Selectric typewriters that
were self-correcting, and that was a big deal. But what really changed the whole
atmosphere was when we got the first computers. This allowed us to control our
destiny and the fights over secretaries weren’t quite as intense.
Alan Morrison, who was the director, would write a brief by dictating the
entire brief to a secretary who could take shorthand. He continued to rely on the
secretaries but the rest of us were free.
I started on January 5. I remember that date because in those days we
were paid by the month – at the end of the month. I was supposed to start at the
beginning of January, but January 1 was on a Thursday. So, Alan suggested that
I start on the following Monday instead of coming in that Friday. All of the
finances were handled personally by Ralph Nader, and when I got my monthly
paycheck Ralph had deducted five days of pay because I started on the 5th rather
than January 2.
Mr. Pollak: Were you living still in Alexandria and you commuted?
Mr. Schultz: Yes, we renovated a house on South Payne Street. We initially lived at
Huntington Towers. I parked on the street and I remember I got many, many
parking tickets, which only cost $5, so I came out ahead compared to a parking
It was a group of ten lawyers. Many of us were about the same age, or
very close. We not only worked together, but we went out to lunch together
every day. We played squash after work. We often worked late into the night.
We socialized over the weekend. It was just a wonderful close-knit group of
outstanding lawyers.
Mr. Pollak: You want to name them?
Mr. Schultz: Three of us came at the same time. John Sims also had gone to Harvard Law
School like Alan. Both had been on the Harvard Law Review. Linda Donaldson
had been the editor-in-chief of the NYU Law Review. Gerry Spann came right
out of Harvard Law School. Gerry, John, Linda, and I were all graduated from
law school the same year. Larry Ellsworth, also a Harvard Law School graduate,
stayed for about five years. Mark Lynch stayed for a few years and went to the
ACLU and then Covington & Burling.
Mr. Pollak: You mentioned Reuben Robertson earlier.
Mr. Schultz: Reuben B. Robertson III, who was closer to Alan’s age, had gone to Yale Law
School and to Covington & Burling, and then went to work for Ralph at the
Center for Law and Social Policy before coming to the Litigation Group. Arthur
Fox, who specialized in labor law, represented union members who challenged
the unions. It was quite a group.
Typically, new lawyers spent a year doing Freedom of Information Act
cases, then went on to other things.
Mr. Pollak: And why was that?
Mr. Schultz: It was a high priority. It was a way to get into court quickly because those cases
went quickly, and the legal issues were not complex. They were good cases for a
young attorney, but I didn’t do them in the beginning.
The first day Alan assigned me to two cases.
One was a case challenging a Food and Drug Administration program
called the “over-the-counter drug review.” In 1962, Congress had directed FDA
to review all drugs for efficacy, including over-the-counter drugs. It was now
1976, and FDA had adopted a regulatory process that made the review literally
endless. Sid Wolfe, the director of Public Citizen’s Health Research Group,
wanted to figure out a way to challenge this. I was asked to do that. We
eventually did bring a challenge, and to show you how long litigation can go on, I
left fourteen years later and a version of that case was still pending. We won
some major victories but never got very good satisfaction.
The second case Alan assigned me was a challenge to the Price-Anderson
Act. The Price-Anderson Act is a law that Congress passed that limits the
liability of nuclear power companies in case of a nuclear accident. That
limitation in those days was $560 million dollars. Ralph Nader had become a
prominent advocate challenging nuclear power on the ground that it wasn’t safe.
He had a group dedicated to challenging nuclear power as a matter of policy, but
he wanted to find a way to challenge the statute. So I was assigned to research it
and try to find out a way to do it.
Three days later, we got a call from a lawyer in North Carolina, George
Daly, who was also challenging the Price-Anderson Act, and he said, “We
brought this case to court before Judge McMillan,” who they thought might be
favorable; he had issued progressive decisions in several very important civil
rights cases, including Swann v. Charlotte-Mecklenburg Board of Education.1
George said that Judge McMillan had ordered a trial on whether we have
standing to bring the case. The basic issue was whether the statute could be
challenged before a nuclear accident had happened. In other words, the issue was
whether someone had enough of an injury from nuclear power plants to bring the
case, or were the plaintiffs required to wait for a nuclear accident. George said
that the judge had ordered a trial and his small firm didn’t have the resources to
handle a trial. They were not getting paid and needed help. We ended up joining
forces with the North Carolina lawyers, but basically handled the case.
The first case I was assigned was still going on fourteen years later, and I
argued the second case in the Supreme Court two years after starting.
Mr. Pollak: You got a lot of responsibility right away?
Mr. Schultz: The deal at the Litigation Group was that in exchange for a very low salary, even
by public interest standards, Alan offered his lawyers as much responsibility as
1 311 F. Supp. 265 (W.D.N.C. 1970), vacated, 431 F.2d 138 (1970), Ct. App. judgment aff’d in part, Dist. Ct. order
aff’d, 402 U.S. 1 (1971).
they wanted for their cases. If the case went to the D.C. Circuit or even if it went
to the Supreme Court, we got to argue it. That was a very attractive feature.
Mr. Pollak: We should explore this case.
Mr. Schultz: It was about the Price-Anderson Act. The name of the case was Carolina
Environmental Study Group, Inc., v. United States Atomic Energy Commission. 2
The Carolina Environmental Study Group was organized by advocates in North
Carolina who lived near a nuclear power plant built by Duke Power Co. and
wanted to challenge the limitation on liability. They brought the case against
Duke Power Co. and the U.S. Atomic Energy Commission, now known as the
Nuclear Regulatory Commission.
My assignment after that Wednesday was to figure out how to organize a
trial to show that we had injury in the case and that it was ripe for judicial review.
Our trial was not about the merits, which was whether the Price-Anderson Act
was constitutional.
Mr. Pollak: And that was the issue that went to the Supreme Court?
Mr. Schultz: Both standing and the merits went to the Supreme Court. I started putting the case
together and we enlisted scientific experts to testify about the likelihood of a
nuclear accident. One was Henry Kendall, an MIT professor and co-founder of
the Union of Concerned Scientists. We enlisted other prominent scientists who
had written about the risks of nuclear power plants.
2 431 F. Supp. 203 (W.D.N.C. 1977), rev’d, Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S.
59 (1978).
I also contacted insurance experts. We planned to argue that our clients
could not get property insurance against the risk of a nuclear accident because
every insurance policy contained a standard clause excluding damages caused by
a nuclear accident.
I tried to find an insurance company that would sell insurance against a
nuclear accident so we could argue that the cost of insurance was an injury
sufficient to give us standing. I contacted Lloyd’s of London which supposedly
sold insurance against any risk, but no insurance company would sell this type of
insurance. We were able to use that as an argument – that the risk of a nuclear
accident must be more than trivial if the insurance companies wouldn’t sell the
insurance at any price.
The defendants ended up calling an insurance expert who testified that
the risk was so trivial it would be irrational for anyone to purchase insurance,
even if it were available. I cross examined him on several issues and then asked
whether it would be irrational to purchase such insurance even if it cost one
dollar. He said, “Yes it would be irrational.” I had gotten the answer I wanted but
went further and asked, “What if the cost were only one penny?” He said that
would be irrational also. Later Alan told me that he would have stopped at one
At some point in the trial, one of the experts was explaining a
mathematical concept. Judge McMillan didn’t understand and began asking
questions, but the expert couldn’t explain it to him. It was a situation where
everyone else in the courtroom understood but the judge didn’t. During the
judge’s exchange with the witness, a member of the audience stood up and said,
“I can explain it.” There was dead silence in the courtroom as the audience
member attempted to explain the concept to the judge. After he sat down, there
was more silence, and then the exchange between the judge and the witness
Mr. Pollak: Was it decided on summary judgment?
Mr. Schultz: No, Judge McMillan held a four- or five-day trial in Charlotte, North Carolina.
At the end of the trial, he wanted to take a tour of the nuclear power plant. Prior
to the trial, there had been a near miss at the Browns Ferry Nuclear Plant in
Alabama. An electrician was using a candle while doing electrical repairs and the
electrical system burned out, almost causing a nuclear accident. We were able to
use that to show that this is something that could really happen. Part of our effort
was to convince the judge that this was not just a theoretical risk.
As we went on this tour, Judge McMillan said, “Well, don’t anybody
light a candle.” So we knew we had gotten through to him.
Mr. Pollak: Did it go to the Fourth Circuit and then to the Supreme Court?
Mr. Schultz: No. After the trial, the judge heard closing arguments, and then some months
later I got a call that there was a decision. We had won the case. He not only
ruled for us on standing on what the trial was about and that the case was ripe, he
ruled on the merits, which had been briefed before we were brought into the case.
Apparently, Judge McMillan feared if he only ruled against the
government on standing, either the government or Duke Power would persuade
the Fourth Circuit to take the case and he might never have a chance to rule on
the merits. So he decided the entire case and held that the statute was
unconstitutional. In those days, when a law was held unconstitutional the
government had the option of appealing directly to the Supreme Court and that is
what they did, skipping the court of appeals.
Mr. Pollak: Talk about that experience of preparing for and arguing this case in the Supreme
Court very early in your career. And maybe you can at least allude to whether
over your long career and many, many, many arguments later your practices
Mr. Schultz: I’ll tell you as much as I can remember.
Filing the brief was an interesting experience. In those days, before office
computers, Supreme Court briefs had to be typeset by a printer. The brief would
be typed in the office and then typeset by the printer. Once the printer did its
work, the page proofs came back and I and others in my office would read the
brief and make corrections. This went through several rounds. We were very,
very careful about this. Several lawyers would read it. We wanted it to be
perfect and we would catch everything.
At the very end, when there were a handful of corrections, I took the
brief to the printer and waited so that I could review the work. At that point the
corrections were minor and only on a few pages so it wasn’t necessary to read the
whole brief. I looked at the page where they were supposed to make the
corrections and made sure they made them. I submitted it and it was all done. I
probably went out and got an ice cream cone.
When the work was done, the brief was produced in small booklets
which I always thought were just wonderful. We filed the brief with the Supreme
My wife and I were driving to North Carolina to visit some friends that
weekend and I packed the brief to show my friend because I was so proud of it.
Before putting the brief in my suitcase, I randomly opened it up to a page and I
started reading a paragraph and it was gibberish. My heart sank.
I later figured out what had happened. In those days, when the printer
made a correction, he or she retyped the entire line of print and pasted it on the
brief. If the error was on page 51, when they gave me the page to review, I would
have seen that the error hadn’t been corrected and then the correction would have
been made. But in this case, the printer had taken that line and pasted it on the
opposite page by mistake, say page 50, which had been a perfect page up until
that point and I thought needed no review. The Court permitted me to file a
corrected brief, but only by pasting the corrected page on the existing brief. It
looked terrible, but it was the only option I had.
Prior to my Supreme Court argument, I had one argument in the D.C.
Circuit. I might have had a small number of district court arguments.
But my main advocacy experience was probably that trial, which is
obviously very different from arguing in the Supreme Court. To prepare, I’m sure
I went and watched some Supreme Court arguments.
Mr. Pollak: You were the respondent?
Mr. Schultz: I was the respondent. I’m sure I read every case that was cited in all of the briefs
and did my best to figure out what my best argument would be — how to present
the argument. We had a terrific practice of moot courts, and we would typically
have two for an appellate argument. Three or four other lawyers participated, and
they always prepared intensively.
This was the most important part of the preparation. My colleagues
would try to anticipate all the questions that I could get, and after the moot court
everybody would make suggestions and I would take very careful notes and get
ready for the next moot court. That was basically the preparation.
The one thing I did differently later is to try not to sketch out my
argument too early. And I view the preparation as a time to get your head in the
case and spend time just thinking about what all the questions might be and what
the answers are. I feel that once you sketch out your argument, you limit your
ability to think expansively about the case and tend to focus on refining the
Of course, the argument you sketch out bears little relationship to the
actual argument that after a few minutes is typically determined by the answers
you give the judge or Justices. But by sketching out the argument, you’re able to
identify most of the points you want to make. Now that we have computers, I
often type out possible questions and notes on how I would answer it. I find
reading the record, the cases, the brief, and thinking about questions and answers,
as the most effective way to prepare for an oral argument.
As was true with the Price-Anderson Act case the records were
important. I’m sure I spent a lot of time re-reading the record. There was a
whole trial in that case. Since the issue was going to be standing, I needed to
have a command of the portions of the record that supported injury and we
certainly understood that this was a very unusual kind of claim to say that we had
a right to bring this case before the accident actually occurred.
Mr. Pollak: And do you remember anything about the argument and the Justices and their
Mr. Schultz: Yes, I do.
First of all, Duke Power Co. was the principal defendant, but the U.S.
Government was as well. Typically, in the Supreme Court each side gets half an
hour to argue. But the Solicitor General asked to argue separately, and he was
given fifteen minutes. Duke Power Co. still got their thirty minutes and I got
forty-five minutes.
The Chief Justice was Warren E. Burger in those days. The argument
started at 10:00 a.m. and then at 12 noon, the Court recessed for an hour lunch.
Justice Burger’s practice was if somebody was arguing and the clock struck 12
noon and there were two minutes of time left, he would say, “It’s time for lunch
and you come back and do the last two minutes after lunch.”
Sometimes the Court opens by admitting new members to the bar, which
means that the second argument will extend past lunch. We were the second case,
and I believe there were court admissions.
The Duke Power Co. lawyer did his argument, the government
lawyer, Solicitor General Wade McCree, presented their argument, and there
were almost no questions. I don’t think the Duke Power lawyer got any. Even as
a very young lawyer, I knew that was a very bad sign for me. If they had no
questions, it was likely that they agreed with the industry and government
But after their arguments, the Court recessed for lunch, and Alan
Morrison and I adjourned to the Court cafeteria.
Mr. Pollak: Could you eat anything?
Mr. Schultz: I’m sure I ate something and I’m sure he encouraged me to eat something. We
knew what was about to happen. It was a very quiet lunch. Not much was said.
Then I went back and got up to argue in this very, very formal setting.
My practice then and has always been, in terms of notes, not to write out the
argument but to have notes. But, in this case, underneath my pad I had the whole
argument written out just in case I panicked. I could pull that out and have a
written argument to read. I never had to use that for reasons that will become
obvious in a minute.
My general experience in arguing was that I would be nervous until I got
the first question, when the nervousness disappeared. Here I probably got two
sentences before Justice Thurgood Marshall asked the first question. His
question made it clear that he did not think much of my case. I don’t remember
the question, but it wasn’t friendly. From then it was just rapid-fire questions,
one after another.
As you can imagine there were many amicus briefs on both sides. Duke
Power Company and the industry made it clear that they were very concerned we
would lose on standing so the Court would rule for them but never get to the
merits. In that case, the only judicial opinion on the constitutionality of the Price-
Anderson Act would have been Judge McMillan’s opinion holding the law
unconstitutional. This could have made it difficult to raise funds to build
additional nuclear power plants.
Duke Power wanted the Court to find standing and to reach the merits.
But there were lots of questions about both. At one point, Justice White said to
me, “So Mr. Schultz, isn’t it true that you would rather lose on standing than lose
on the merits?” It was a mean but perceptive question, and one that I didn’t want
to answer. I hesitated for just a moment and another justice asked a question, so I
never had to answer Justice White. I remember Justice Burger had a couple of
questions written out and he read them and then never followed up. But the
others were very willing to follow up.
My dad and mother came to watch the argument. My father had gone to
law school with two of the Justices, Justice White and Justice Potter Stewart.
Justices sometimes write notes and have the assistant in the Court give them to
somebody in the audience. Each of them wrote a note to my father. The notes
represented their personalities. White’s note was, “Chips and blocks and things
like that. Congratulations.” And Stewart’s note was, “It makes me feel old to
realize that this lawyer is your son. He did a good job under very heavy fire.” I
still have those notes.
I don’t really know what else to say about the argument. One thing about
arguing in the Supreme Court, as opposed to the circuit court or district court:
When you’re in a lower court, you know that you can spend enough time on it
that you really know your case and the law as well as, probably better than, any
judge. You can be very confident if you do the work.
But that’s not true in the Supreme Court. The Supreme Court handles
cases in a narrower range of issues and often they have written the leading
opinions over twenty years or more. The issue in the case typically turns on the
law, not on the facts, as is often the case in the lower court. It’s also nine Justices.
In a court of appeals of three judges, you have a chance of controlling things.
With nine Justices in the Supreme Court, there’s usually no chance of controlling
the flow of the argument. You just have to answer the questions and hope you
make all of your points. When it was over, I didn’t have any regrets. I felt I had
made all my points. There wasn’t anything I had forgotten to say or wished I had
said differently, but I knew I was going to lose.
We went outside and were greeted by many press cameras, but as a
lawyer you can’t really say much. This case in the district court and then the
Supreme Court had massive attention from the press. The press came from all
over the country to cover the trial and was there to cover the argument in the
Supreme Court.
Mr. Pollak: It was a great way to start your appellate life.
Ms. Schultz It was. In writing the brief, there must have been a hundred Supreme Court cases
on takings. I read every one of them. I decided when I was working on the brief
that the due process argument made in the district court was not our strongest
argument. It wasn’t a very good argument.
Mr. Pollak: And that was the ground that the district judge had rested on?
Mr. Schultz: That was the main argument he relied on. The argument in the district court was
that it was a violation of due process for Congress to limit the remedy in that
way. It was essentially an effort to revive substantive due process which had
been so popular in the 1930s but had little currency by the 1970s. But the taking
argument, I had decided, was a real argument. And that argument was that if
there was an accident and somebody’s property was damaged, and because of this
limitation on liability they only got ten cents on the dollar, that was a taking of
property by the government without just compensation in violation of the Fifth
Amendment to the Constitution. We argued it was comparable to the state
deciding they want to build a road over an individual’s property; the Fifth
Amendment requires that the individual be compensated.
There were a couple of very old cases I found that were helpful. There
was a case where the Supreme Court held that pollution from a train that
devalued somebody’s property was a taking. I thought that was a pretty good
The government did come back and say, “Well, if there’s a taking, you
have a remedy under the Tucker Act.” In other words, if we were right, there is a
system for the government to offer compensation and therefore the Price-
Anderson Act wasn’t unconstitutional.
In the end, the Court held we had standing and reached the merits. They
said we lost on due process and that the taking issue did not have to be decided at
the time because the Tucker Act provided a remedy if there was a nuclear
accident. We didn’t really lose that. They just didn’t decide it.
In terms of the goal of the case, which was to make it much more
difficult for the nuclear industry to finance the construction of nuclear power
plants, we lost. We didn’t get what we wanted. The Price-Anderson Act was
created because it was believed the nuclear industry couldn’t get the financing
without that protection. There weren’t any nuclear plants built after the decision
for other reasons. They became too expensive and too uneconomical.
Mr. Pollak: Did Mr. Nader talk to you about the case afterwards?
Mr. Schultz: Yes, and he attended the argument. Ralph Nader was notoriously late. I had
given him a ticket to the argument, and he obviously had a real interest in it. I
remember when the case was called, the name, Duke Power Co. v. Carolina
Environmental Study Group, Inc., grabbed my attention. The thought that went
through my mind was I wished it was a different name because it sounded like a
bunch of small-time do-gooders challenging nuclear power.
Ralph Nader arrived very late, about ten minutes into my argument. I
remember the Justices all looking up from watching me to see this celebrity,
Ralph Nader, coming into the courtroom as if to say, “Oh, so that’s what this case
is about.” I’m sure I talked to him about it. I don’t remember what he said. He
probably thought I should have argued it differently and talked more about the
compelling risks of nuclear power rather than the legal issues before the Court.
While we’re on Ralph Nader, I ultimately had a very good working
relationship with him. There are times when we testified together on various
issues and I remember I learned that if the hearing was going to be at 10:00 a.m.,
I would tell him 9:30 a.m. One time I did that he got annoyed at me, but he was
there on time and wouldn’t have been if I had not said that. He was late to
One of his most famous cases arose because of his lateness. It was called
Nader v. Allegheny Airlines. Nader sued Allegheny Airlines because it had
refused to board him on a flight. He was traveling to give a speech and being
paid an honorarium, so the lost honorarium was his damages. When he arrived at
the last minute, as he always did, the airline officials said, “Oh, sorry. The plane
is full. We overbooked. We mistakenly overbooked and sold too many tickets.
So, there is no room for you.” Well, this happened to him several times and he
became convinced that this overbooking wasn’t a mistake but was intentional.
It’s what the airlines did to ensure that their flights were full. So he brought a
case against them and he won at the Supreme Court.3
As a result, the airlines changed their practice. They still intentionally
overbook but if they have too many people for the flight, they’ll pay passengers
to agree to take another flight through a bidding system. That was Ralph Nader.
Mr. Pollak: I think you might move from your experience with the case testing the Price-
Anderson Act constitutionality to your trajectory within Public Citizen Litigation
Group. Did you continue developing cases? Did you specialize in an area? You
spent fourteen years there. The oral history should reflect the organizational
framework for that period of your life.
Mr. Schultz: I mentioned two cases I got that first day. One was the over-the-counter drug
case for the Health Research Group. Through no plan, I ended up doing a lot of
work with the Health Research Group. During those fourteen years, half of my
practice was a food and drug practice, and I gained an expertise in that area.
Part of the work was litigation, but there was also a lobbying component.
I had a lot of interaction with Congress opposing bad legislation or supporting
legislation and I testified on the Hill many times. It wasn’t all FDA but that was
3 Nader v. Alleghany Airlines, 426 U.S. 290 (1976).
a very big component. I did a lot of speaking at FDA conferences. I also had a
lot of interactions with the agency.
The other half was a mix. I had gained some nuclear power expertise and
I spoke frequently about that case and testified on the Price-Anderson Act. I
litigated cases on auto safety because Nader was so interested in it. I litigated a
number of voting rights cases.
Mr. Pollak: And what were those voting rights cases? How did they develop?
Mr. Schultz: Ralph Nader had a particular interest in initiatives and referendums because it
was a way in which individuals could challenge the government.
My client was Jack Phelan, a local activist who wanted to challenge the
District of Columbia government’s decision to build a convention center. The
District of Columbia’s Charter contained the right of initiative and referendum.
Jack Phelan was an economist with the federal government, and he thought
appropriating money for a convention center was a very bad economic decision.
He collected signatures to support a referendum to challenge the appropriation of
the District of Columbia government.
The problem was that although there was this right in the Charter, there
was no implementing legislation or regulations. So there was no legislation to
tell him how to do this or what the form should be. Jack had collected the 10,000
signatures, which we submitted to the Board of Elections of the District of
Columbia government. The Board turned us down and so we filed a case in the
D.C. Superior Court. We ended up bouncing back and forth between the court
and the board until there were three separate cases before Superior Court Judge
Norma Holloway Johnson. We argued that we had a right of referendum and it
was a right in the charter, but ultimately, I think the City Council issued
regulations and accepted the signatures. So the issue was whether this type of
question could be put up for a vote under the initiative/referendum charter
Ultimately Judge Johnson ruled against us, and I appealed it to the D.C.
Court of Appeals. We lost with a dissent, but the Court granted our motion for a
rehearing before the entire court.
This is an argument I remember well. I started out by saying, “May it
please the Court. My name is William Schultz. I’m here on behalf of the
Convention Center Referendum Committee and there are three cases. And for
ease I’ll call them Convention Center I, Convention Center II, and Convention
Center III.” And Chief Judge Theodore Newman then interrupted me and said,
“Mr. Schultz, let’s just call them Convention Center ad nauseam.” It was an
unusual beginning of an oral argument.
As I remember, by this time and maybe as a result of one of the cases, the
District finally issued the implementing regulations. So we won on that issue.
But the issue in the case was whether there was a right to have a referendum on
appropriation, or limit the determination to an ordinary law. We lost the case 5 to
4. We got all the conservatives on the court and lost the liberals. The liberals
were all very supportive of Mayor Marion Barry and the government, and they
wanted the government to be able to make its own decisions.
The outcome to the story is the Convention Center was built. It was a
total economic failure, and it has since been torn down. And a much bigger one
was built to replace it.
In the FDA practice, I represented the Health Research Group. I also
represented Center for Science in the Public Interest and the Natural Resources
Defense Council (NRDC), an environmental group on pesticide cases. I had a
whole range of clients and the great thing about it was that I didn’t have to charge
them. And I mostly didn’t have to keep track of my time. If we had a possibility
of attorneys’ fees, we would keep hours but otherwise we didn’t.
Mr. Pollak: In handling a case, did you do it all on your own or did you work with somebody
Mr. Schultz: No. There were always three people working on every case. There would be one
other person with whom I worked fairly closely and then Alan Morrison, the
director, was on almost every case as well. I’m sure I worked with every lawyer
there. I did end up getting some of the other lawyers very interested in food and
drug law. Kathy Meyer ended up doing a lot of food and drug law.
But mostly we would get a case and ask somebody else to help us on it. It was
not a competitive situation. This was a group of real achievers. They certainly
had been competitive in school, and you would think there would be a lot of
competition for who got the best cases and so on, but Alan had a method of
assigning the cases that really took a lot of that away. For example, I ended up
building FDA expertise and forging a very close relationship with Sid Wolfe, the
Director of the Health Research Group. Any FDA case I would have some role
in, whether I wanted to be in the lead or wanted to be the second person.
Mr. Pollak: Were you litigating primarily in the United States District Court for the District
of Columbia and when there were appeals in the D.C. Circuit?
Mr. Schultz: Yes, although I also argued in the Ninth Circuit, the Sixth Circuit, and the Florida
Supreme Court. I had trials in Chicago, North Carolina, and Ohio. But we were
very centered in D.C.
Mr. Pollak: You want to comment on your observations of the court in the cases that you
had? It would be interesting to have your recollections of judges’ performances
or your experiences in the D.C. Circuit.
Mr. Schultz: In the district court, I mentioned my first case outside of the nuclear case was a
challenge to the over-the-counter drug review. That case was Cutler v. Kennedy.4
We represented three individuals who used over-the-counter drugs. We drew
Judge John Sirica of Watergate fame, who had the reputation outside of
Watergate of being a conservative, government-oriented judge. It wasn’t seen as
a good draw. The trade association for the over-the-counter drug industry
intervened. They were represented by Robert A. Altman, who was a young
lawyer in the firm of Clifford, Glass, McIlwain & Finney. This was Clark
Clifford’s firm. Clifford was the ultimate Washington insider. He had been
4 475 F. Supp. 838 (D.D.C. 1979).
counsel to President Truman and Secretary of Defense under President Johnson.
Altman later became very famous as a protégé of Clark Clifford in the BCCI
bank scandal case and was charged, I believe, with criminal fraud. He was a very
hard-charging lawyer and was very confident he was going to win this case
because we had Judge Sirica.
The case involved the review of the over-the-counter drugs by FDA. The
statute had directed FDA to require that drugs be safe and effective. Congress
passed the efficacy requirement in 1962, and told FDA to go back and look at all
the drugs on the market. FDA initially looked at prescription drugs, but they also
had the obligation to look at over-the-counter drugs or simply act and take the
ones off the market that weren’t proven. The OTC Review was established under
Peter Hutt when he was the chief counsel of FDA, after which he returned to
Covington & Burling to practice food and drug law.
Under the regulations that Peter wrote, the National Academy of
Sciences reviewed all these drugs and put them into seventeen different
classifications. Then FDA would take those recommendations and put them in
one of three categories. It was a review of the ingredients and not the drugs.
Category 1 was safe and effective, Category 2 was not safe and effective, and
Category 3 was we don’t know and more testing is required. The theory of our
case was Category 1 and Category 2 were fine, but if the FDA was finding that
more testing was required, it was finding that the existing evidence did not
demonstrate safety and efficacy and was required to take the drug off the market.
It was a legal issue; we didn’t need a trial, although there could have
been issues raised about standing, and Bob Altman took everybody’s deposition.
At one point, he even took my deposition because he had a theory that our
recruiting the plaintiffs was somehow relevant to standing. Judge Sirica, much to
everybody’s surprise, issued an opinion that not only ruled in our favor, but was
extremely well crafted. In fact, it was so strong the government didn’t appeal.
So that was a big victory, and something that we were very pleased with.
Mr. Pollak: Do you have more to say about your cases?
Mr. Schultz: Not right now. Fun to recall these days. They were really wonderful.
This is the fourth in a series of interviews of William B. Schultz conducted by Stephen J. Pollak
on behalf of the Oral History Project of the District of Columbia Circuit. This interview was
conducted on Friday, May 28, 2021, in Washington, D.C.
Mr. Pollak: When we concluded your third interview, we were discussing a Supreme Court
case that you handled as an attorney with Ralph Nader’s Public Citizen Litigation
Group. Would you set the stage for other Supreme Court cases that you handled
in that period?
Mr. Schultz: Sure. The second case I argued was Young v. Community Nutrition Institute.5
Frank Young at that time was the Commissioner of the Food and Drug
Administration. Public Citizen Litigation Group represented Nader’s
organizations, but we also represented a lot of other public interest groups around
Washington, D.C. The Community Nutrition Institute at that time was a leading
group that advocated for food safety and nutrition. They brought us a problem
involving a substance called aflatoxin, which was a contaminant that appeared in
corn and other food and was thought to be a carcinogen, dangerous but avoidable.
FDA set what the agency called action levels, a level at which products were
permitted to have aflatoxin. The Community Nutrition Institute thought it was too
high and when FDA set these action levels, they were written in a mandatory
way. FDA said if you comply with this, if the levels are below the action level,
we will not prosecute you. CNI brought it to me and said, “What can we do?” I
looked at it and there was a specific provision in the statute that said if the agency
5 Community Nutrition Institute v. Young, 757 F.2d 354 (D.C. Cir. 1985), rev’d, 476 U.S. 974 (1986), remanded to
818 F.2d 943 (D.C. Cir. 1987).
set this level for unavoidable contaminants such as aflatoxin, it then had to go
through a formal hearing process, and they had not done that. We filed a lawsuit;
I think directly in the D.C. Circuit.
Mr. Pollak: Can you file suit directly in the D.C. Circuit?
Mr. Schultz: I think the Food, Drug, and Cosmetic Act provided for direct appeal to the D.C.
Circuit. That was a long time ago, I should check but I think here we determined
that even though there had not been a hearing from which to appeal, there should
have been, and it went to the D.C. Circuit.
Mr. Pollak: Bill, could I interrupt the flow just to say it would be helpful if you spelled out
your thinking as to why speaking about what are undoubtedly interesting
litigations, you’ve chosen these and how they fit into your history. How do you
see that?
Mr. Schultz: These are three cases that went to the Supreme Court.
Mr. Pollak: That you handled personally?
Mr. Schultz: That I argued. The Litigation Group and I had a ton of work in the Supreme
Court. So much so that I got to know the Supreme Court Clerk very well
personally. I was involved in many cases including cert petitions where I was the
lead attorney that the Court did not accept. But these are the three cases I argued
in the Supreme Court, so I thought they were significant. This one fits in because
my specialty, about half my work, was in the FDA area. I was considered to be
an FDA expert, and I was the lawyer that public interest groups went to in
Washington to consult on FDA issues. This was one of them and it went to the
Supreme Court.
We argued that there was a provision in the statute that required a
hearing. It’s a technical lawyer’s argument, and we had a second technical
lawyer’s argument, which was an argument under the Administrative Procedure
Act. It says if the agency is going to issue a rule, a binding statement, then it has
to go through notice and comment rulemaking. Instead of any process, the FDA
just set the action levels, allowing contamination of the food supply. I argued the
case in the D.C. Circuit, and we prevailed. Ken Starr was on the panel and wrote
the majority opinion in our favor.6 After we won, the Government petitioned for a
writ of certiorari and the Supreme Court accepted the case.
In preparing for the argument, I read every FDA Supreme Court case that
had ever been decided.
Mr. Pollak: Were there are a lot of them?
Mr. Schultz: There might have been ten, but the remarkable thing was the FDA had never lost
a case, and in fact had won all their cases unanimously.
Mr. Pollak: Was that your first Supreme Court argument?
Mr. Schultz: No it’s the second. The first was Duke Power that we talked about last time and
that was very early on in my career. This was 1986 and one interesting thing is
that right after I argued it, I went on my first date with Sari, my future wife. She
6 757 F.2d 354 (D.C. Cir. 1985), rev’d, 476 U.S. 974 (1986), on remand, 818 F.2d 943 (D.C. Cir. 1987).
asked me what I had done lately, and I was able to say “Well, I just had an
argument with the Supreme Court.”
We lost the case. The core issue was whether the FDA could read the
word “shall” as “may.” In her opinion ruling against us, Justice Sandra Day
O’Connor said there is a misplaced modifier in the statute, and she was able to
take a provision in this sentence pretty far away from the word “shall” and say it
modified it and turned it into “may.” But unlike every other FDA case that I was
able to identify, we did get a dissent. I got one vote from Justice John Paul
The Supreme Court decided the issue under FDA’s statute, but we had
another argument, which the Court sent back to the D.C. Circuit. I argued the
case for a second time there, and we won. We ended up winning the case even
though we lost in the Supreme Court. This made it more difficult for FDA to
allow contaminants in food.
Mr. Pollak: What was the third case you argued in the Supreme Court?
Mr. Schultz: It was about a merger that was being proposed between the two newspapers in
Detroit: The Detroit News and the Detroit Free Press. They were owned by the
two largest newspaper conglomerates in the country, Gannett and Knight Ridder.
A reporter from the Detroit Free Press and his union had challenged this and had
received a favorable decision from an administrative law judge at the Department
of Justice and from the head of the Antitrust Division. They ruled against the
merger, saying it was antitrust violation.
The newspapers appealed to Attorney General Edwin Meese. After an
intense lobbying campaign by Knight Ridder led by Clark Clifford, a prominent
Washington lawyer who had been counsel to President Harry Truman in the
White House and Secretary of Defense during the Johnson Administration, the
Attorney General overturned the decision and at that point the union decided not
to pursue it. The two newspapers were getting ready to merge and a lone
reporter, Lou Mleczko, called Ralph Nader and asked whether he could do
anything about this. Literally they were connecting the phone lines for both
papers and I think they had ten days from the Attorney General’s decision to
appeal. I was working at the office on a Sunday afternoon when Ralph called and
asked whether I could check into this. I checked into it and didn’t think we could
bring a case on behalf of a single reporter. Lou Mleczko started contacting other
potential interested parties. He enlisted some small newspapers around Detroit,
and he found some other individuals who wanted to challenge the decision. I got
my colleague David Vladeck to help, and we put together an organization named
“The Michigan Citizens for an Independent Press.” The name of the case we
filed was Michigan Citizens for an Independent Press v. Thornburgh.7
Within a few days we put together a motion for a temporary restraining
order. The research showed us that a statute called The Newspaper Preservation
Act creates an exception to the antitrust laws. Normally the two major
newspapers in a market couldn’t merge because such a merger would essentially
7 Michigan Citizens for an Independent Press v. Thornburgh, 868 F.2d 1285 (D.C. Cir. 1989), reh’g denied, 868
F.2d 1300 (D.C. Cir. 1989), aff’d, 493 U.S. 38 (1989).
eliminate competition. But the Act says if there is a failing newspaper, it can
merge with another newspaper even if they would completely dominate the
market. In that situation it’s not a violation of the antitrust laws since the merger
would save a newspaper that was failing.
We had a very unusual situation because both newspapers were losing
money. One of them was fifteen cents an issue and the other was ten cents an
issue. Our theory of the case was they were both failing intentionally because
these two major conglomerates wanted them to fail so they could merge and
make monopoly profits. There had never been a case where two newspapers
were failing.
This was the first time two failing papers tried to qualify for the
exemption under the Newspaper Preservation Act. We argued that if Justice
didn’t give them the exemption, they’re not both going to fail. They will start
raising their prices and they will raise their advertising and they will do just fine.
One was the morning paper and one the afternoon paper.
We filed our motion for a temporary restraining order, which we put
together in a couple of days. We drew Joyce Hens Green in the District Court of
the District of Columbia and she granted the temporary restraining order. It’s an
example of the power of being a lawyer and bringing in the courts. Here are
these two major companies and they thought this was all done. Literally they
were combining the phone lines and we stopped it. Completely stopped it in its
place. Judge Green wrote a 30-page opinion but unfortunately had only been
assigned the case for the emergency motion. For the emergency motion, the
newspapers hired Philip Lacovara, a very prominent D.C. attorney, but he lost the
case. The case then got assigned to Judge George Revercomb, who heard the
preliminary injunction motion and the merits.
We thought the first step in the case should be to take the deposition of
the Attorney General because it was very clear to us from what we had read in the
papers that there had been this intense lobbying campaign. We thought we could
use discovery to show that this had not been any type of reasoned decisionmaking.
But discovery was denied, and we briefed the merits. The newspapers
replaced Phil Lacovara with Clark Clifford, who was a board member of Knight
Ridder. He had engineered the Meese decision and was hired to argue the case.
The next thing I knew I got a call from Clark Clifford. I answered the
phone and he said, “My name is Clark Clifford” – as if I didn’t know who he
was – “I’m a lawyer in town and I started out in Kentucky where we had a
tradition of when you have a new case you walk over to your opponent’s office
and meet with him to introduce yourself.” He said, “I would like to come over to
your office and meet with you to introduce myself.” I said that’s very nice, but I
would be happy to come to his office. I said that for two reasons. One, we had
pretty shabby offices. It was Ralph Nader after all. But I also thought out of
respect he was clearly the senior lawyer, and I should travel to his office. I went
over and met with him. He had an office on 17th Street on the top floor that
overlooked the White House, with all sorts of memorabilia.
Mr. Pollak: What was the burden of the first meeting?
Mr. Schultz: Nothing.
Mr. Pollak: Just to introduce?
Mr. Schultz: Yes. Just to introduce, and he continued this way. He would periodically call me
and ask me a question about the District Court rules. He continued in this
deferential manner which made no sense but that was his way. He rose for the
oral argument before Judge Revercomb and had a single piece of paper with four
points in large printing.
Mr. Schultz: He was very deliberate, of course, in style and presentation. He had put the paper
on a little shelf under the podium so as he walked up to the podium, he had
nothing in his hands, and he pulled the paper out and put it on the podium. He
didn’t make a legal argument. His argument was, I’m on the Board of Directors
and I can assure you that if you rule against me, we are closing this newspaper
down. That would be the consequences of your ruling. He made his argument.
Mr. Schultz: Judge Revercomb was in awe because after all this was Clark Clifford and the
judge did not ask him a single question. Then I got up and made my argument,
which was uneventful as far as I remember. We got our ruling fairly quickly and
we lost the case. We got a stay pending appeal, briefed the case in the D.C.
Circuit, and I argued that case against Clark Clifford and the Justice Department
lawyer, Doug Letter, whom I knew. In fact, when I was growing up Doug lived
next door to me for several years, and our mothers were good friends. He
represented the Government in other Litigation Group cases, and later we also
worked together at the Department of Justice.
The D.C. Circuit assigned Clark Clifford ten minutes because he had to
share time with the Government. Often in the D.C. Circuit you get a short amount
of time but the Court has questions and it can go on for quite a while. After I
made my argument, Clark Clifford started his. Unlike the district court, he
received questions. The panel was Laurence Silberman, Ruth Bader Ginsburg,
and Spottswood Robinson. Judge Silberman asked Clark Clifford how a case
named Chevron applied to construing an exception to the antitrust laws. Chevron8
was a D.C. Circuit/Supreme Court case that is one of the most cited cases of all
It had been cited in Clark Clifford’s brief and in those days, you had to
star cases principally relied on, and it had been starred in his brief. Judge
Silberman was interested in whether the Attorney General was entitled to
deference in connection with his construction of the statute, and so he asked, “to
what extent does Chevron apply?” And Clark Clifford said, I don’t believe it has
any application. It was quite clear to everybody in the courtroom that he never
read the case, even though it was in his brief. When it got to ten minutes, Judge
Robinson, the presiding judge, said, “Mr. Clifford, your time is up.” This was not
the deference Mr. Clifford experienced in the District Court.
8 Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Then Doug Letter got up to argue for the government and Doug Letter
knew exactly what was happening. He said, “Before I start my prepared
argument, I would like to answer the $64,000 question.”
Mr. Schultz: Everybody knew he was talking about the question that Clark Clifford couldn’t
answer about Chevron. Judge Silberman interrupted him and said, “Actually Mr.
Letter, it’s the sixty-four-million-dollar question and if you answer it the way Mr.
Clifford did, I think you lose the case.” Doug Letter took the hint, although he
probably didn’t need a hint, and made his argument about why Chevron applied.
The argument concluded. My wife Sari was at the argument. She had
some interesting comments about the judges and about Clark Clifford’s
performance. When we got the decision, we learned that we lost 2-1. We lost
Judge Silberman which was predictable. Ruth Bader Ginsburg dissented but,
unfortunately, we lost Spottswood Robinson.
Mr. Schultz: We petitioned for rehearing en banc, rehearing before the whole court. We got
the decision and I think two of the judges had recused themselves, and we lost 5-
4. They gave us a short stay to give us time to get to the Supreme Court which
they knew was where the case was going. The first thing we needed to do was to
ask a single justice on the Supreme Court for a stay. You can go to any Justice
that you want, I think, and we went to Justice Brennan. We were very anxious
about all this because the papers could start merging at any time. I was in
constant communication with the Clerk of the Court. When I called him on
Friday he said, “We still don’t have anything for you.”
There was nothing Friday, but Saturday morning the Supreme Court
Clerk called me and said, “Well, Justice Brennan decided to come in on a
Saturday and he granted the stay.” We got the immediate stay from a single
justice, but later after briefing the full court denied the stay. They don’t tell you
the votes, but we knew that at least five Justices had voted against us since we
needed a majority for a stay. Only four Justices are required for certiorari, a full
hearing before the Court.
I’ll divert for a moment. Sometime during all of this, Clark Clifford
asked me to come back to his office. David Vladeck and I went. He told us he
wanted to settle the case. You might ask how do you settle a case like this? You
either merge or you don’t. But his offer was no merger and significant money,
including attorneys’ fees. We obviously couldn’t accept.
Here’s another detour. During the case Clark Clifford’s argument was
that if we you win this case, Knight Ridder would close. We had no way to
evaluate that, but this wasn’t the result we were looking for. We didn’t believe it,
but we had no way to evaluate it.
Sometime in the past one of the lawyers who worked at the Public
Citizen Health Research Group had a girlfriend named Susie Buffett, daughter of
Warren Buffett, whom he later married. Warren Buffett, a nationally known
billionaire, was on the board of The Washington Post and owned a number of
newspapers. We thought maybe we could get a conversation with him to find out
whether there was anything to the idea that Knight Ridder would fold if we won.
Alan Greenberg, our friend, arranged for me to have a conversation with Warren
Buffett. He gave me his number and I called him at home. He was skeptical
about Clark Clifford’s position but in the end, he said it was hard to know. This
didn’t dissuade us from pursuing the case.
Back to the Supreme Court, which denied the stay. We petitioned for
certiorari, which required only four votes. Certiorari was granted. Knight Ridder
and Gannett decided not to merge, to see what was going to happen in the
Supreme Court even though the denial of a stay would have permitted them to do
I argued the case at the Supreme Court, and I will say this case got
tremendous attention because we were up against the two biggest newspaper
publishers in the country. And, of course, the case was discussed on the front
page of the Detroit papers many, many times.
I enlisted various people to review the brief, one of them being Merrick
Garland. He was a close friend who had expertise in antitrust law and also knew
a lot about administrative law. Ernest Gelhorn, who was also a very prominent
antitrust and administrative lawyer and one of my teachers in law school, also
reviewed the brief. We threw everything we could into the case.
Mr. Pollak: What happened next?
Mr. Schultz: We always knew that the vote would be close since we lost the motion for a stay,
but the Court had granted certiorari. After I argued the case, we got a notice that
Justice White had recused himself. We never learned why. We knew that Justice
White had a Detroit connection. He had been in my father’s class at Yale Law
School, and my father told me that he attended only the spring semester, and
played football in the fall for the Detroit Lions. In fact, he was rookie of the year
his first year, while he was in law school.
So, Justice White had very close connections to Detroit. I don’t think
playing football would have been enough for him to recuse himself, but he may
have had some relationships with officials at The Detroit News or Detroit Free
After he recused himself and we got our decision, it was a 4-4 tie, with
no opinions as is traditional when there is a tie. This meant that the 2-1 panel
opinion in the D.C. Circuit controlled. I counted this up at one point and there
were 19 judges and Justices who ruled on this case. Ten ruled against us, nine for
us, but the papers did merge and I don’t think it was nearly as successful as they
had predicted.
That was the best case Ralph Nader ever gave me. He brought a lot of
cases and a lot of ideas to us, and some of them were terrific and some of them
weren’t so good. He was very, very creative. I remember one time he came to
me because a pizza place in Amherst, Massachusetts had run an ad that said,
“When Ralph Nader comes to Massachusetts, he eats at Pinocchio’s Pizza.” And
then it says, “and I would not tell a lie,” with a picture of Pinocchio with a long
nose. Ralph Nader wanted to sue them for trademark infringement, but I talked
him out of it. He was very good to work with in that way because he did listen.
You could talk him out of things that weren’t a good idea.
Mr. Pollak: Did losing the case affect your view of the legal process and its outcomes, losing
the newspaper case?
Mr. Schultz: No, I had many times where I lost a case where I thought I was totally right, and
other times that the decision was completely wrong, and this was certainly one of
Mr. Pollak: It was based on Chevron?
Mr. Schultz: The two judges on the D.C. Circuit panel gave Attorney General Meese a lot of
deference. I guess in the end the issue was whether two newspapers could fail
simultaneously, and they were willing to defer to Meese. I would point out the
administrative law judge and even the Republican Assistant Attorney General for
Antitrust voted our way. When they looked at the facts, they didn’t think this
was justified. I had no doubt we were right but no, I think all the judges and
Justices took the case very seriously and did the best they could. I was
The biggest disappointment is that we didn’t get Judge Robinson. I think
we should have gotten him, and if we had we would have won the case since the
panel’s decision was the one that prevailed. I have no explanation for his vote,
but otherwise the votes fell along political lines. I think we got the Democrats
and liberal Republicans and lost the others.
Mr. Pollak: Well, it was a great case.
Mr. Schultz: It was a great case.
Mr. Pollak: You’ve said to me in thinking about doing this history that the core of your work
at the Public Citizen Litigation Group was related to actions of the Food and
Drug Administration. Who was your client there, what issues did you address,
and at what level of the system?
Mr. Schultz: My main client was the Health Research Group, which was a division of Public
Citizen. The director was Sidney Wolfe. He was a doctor and he was my most
frequent client. It was a great collaboration because he was a doctor/scientist, but
he was an unusual scientist. Most scientists are pretty cautious, but he was
willing to take clear positions and to be an advocate. He was willing to take on
doctors, he was willing to take on government agencies, and he was willing to be
very, very clear in his public statements. He was a favorite of the press.
What I liked about it and underneath it is that he was a scientist. Once I
heard him talk CBS’s 60 Minutes out of attacking a drug company that Sid really
disliked, where he said science just didn’t justify it. He wasn’t willing to put
aside the science to be an advocate, but he was able to use it and we developed a
terrific working relationship. He really saw the value in lawyers. He deferred to
lawyers on the legal issues but understood a lot about the law.
Mr. Pollak: Had you had any FDA background as this developed?
Mr. Schultz: No. We had an FDA course in law school, but I didn’t take it. So, I had no FDA
background. I just happened into it because that first day I got assigned an FDA
case and then I developed a good working relationship. Soon after that I got a
second case, a challenge to a trivial carcinogen called chloroform that appeared in
drugs, and the Health Research Group had petitioned FDA to ban it.
Mr. Pollak: What do you mean they had petitioned —
Mr. Schultz: The Health Research Group had asked FDA to take this carcinogen out of drugs.
The FDA denied and I appealed to the D.C. Circuit. The only significant thing
about that case is I argued it early on and it was the only appellate case I had
argued before I argued the Duke Power case in the Supreme Court. It just got to
the point that whenever Sid had a case he wanted to pursue, he would always
come to me with it. Often I would enlist somebody else in the Litigation Group
to take the lead, but I would always be involved. As I explained last time, we
always had two or three lawyers on the case.
Other public interest groups from around DC also came to us with FDA
cases, among them the Community Nutrition Institute and the Center for Science
in the Public Interest, which today is the leading food group. I also did cases for
the American Public Health Association, the National Council for Senior
Citizens, the Environmental Defense Fund, and the National Resources Defense
Council, but usually with an FDA bent. The case for NRDC went to the Ninth
Circuit and involved pesticides where regulation was shared by FDA and EPA.
We were a litigation group for any public interest cause. We would
consider the case of any group that came to us, and very likely if we thought it
was a strong case we would take it. The nice thing is we never had to charge a
fee, and we never had to keep track of time except if the case had the prospect of
collecting attorney’s fees. We could spend as much time as we needed to spend
on the case to do the very best job we could do. It was a real luxury.
Mr. Pollak: Where did FDA practice take you?
Mr. Schultz: We were the Litigation Group, but I got very involved in legislative matters on
Capitol Hill. We had a lobbying group and I often worked with them. If there
was legislation about nuclear power, I might testify on that. If there was
legislation about food safety I would be involved.
We would work very closely with congressional staff. We would testify
very frequently at hearings on a whole range of issues. When the FDA wanted to
allow prescription drug advertising, John Sims and I testified about the First
Amendment implications. John was another lawyer at the Litigation Group and a
First Amendment expert.
Mr. Pollak: Did you spend a lot of time on Capitol Hill?
Mr. Schultz: Yes. For example, at one point there was an issue about saccharin, which was a
sweetener used in Coca-Cola and other sodas, and it was found to be an animal
carcinogen. There was an issue about whether FDA should ban it. Under the
Food, Drug, and Cosmetic Act, there is a provision called the Delaney Clause
which said you cannot intentionally add a carcinogen to food. A lot of our work
involved carcinogens. Aflatoxin, at issue in the Community Nutrition Supreme
Court case, was a carcinogen unintentionally added. Saccharin was intentionally
added to food and it was found to be a carcinogen in animals, which meant it had
to be banned.
The FDA thought it was not a health hazard and the agency asked
Congress to grant an exemption by passing a law. We disagreed and I wrote two
published articles about the value of the Delaney Clause and why it is so
important.9 I testified on Capitol Hill about it and I remember at one point I was
testifying before the Energy and Commerce Subcommittee on Health and the
Environment, which was Henry Waxman’s subcommittee. David Stockman, who
later became the head of the Office of Management and Budget under President
Reagan, was a very conservative congressman at the time and he started
questioning me and belittling my point. He said what’s the big deal, it’s such a
small risk. I made the point that you have to be concerned about children, who
sometimes can consume very high volumes of soda, and we just don’t know
about their developing bodies and their susceptibility to carcinogens. He kept
interrupting me and wouldn’t let me answer. Congressman Waxman interrupted
him, which was very unusual. He said, “Mr. Stockman, let the witness answer the
question.” I was allowed to answer and when I got the transcript, the exchange
between Stockman and Waxman wasn’t there because it was an embarrassment to
David Stockman. I ultimately developed a very good working relationship with
Congressman Waxman’s staff and particularly with Bill Corr, the FDA staff
person there.
9 William B. Schultz, The Bitter Aftertaste of Saccharin, 40 Food Drug Cosm. L.J. 66 (1985); William B. Schultz,
Why the FDA’s De Minimis Interpretation of the Delaney Clause Is a Violation of the Law, 7 J. Am. Coll. of
Toxicology 521 (1988).
I should explain that Ralph Nader had several different groups that
specialized. We were Public Citizen Litigation Group. Congress Watch was the
lobbying group. They lobbied for progressive legislation. The Health Research
Group focused on the Food and Drug Administration and the Occupational
Health and Safety Administration. There was also a tax group and a nuclear
power group.
I think the most significant piece of legislation I worked on was the Drug
Price Competition and Patent Term Restoration Act of 1984. That law created
the generic drug industry. It’s called the Hatch-Waxman Act because it was a
famous compromise between Henry Waxman in the House and Orrin Hatch in
the Senate. The compromise combined two bills.
One was the Patent Term Restoration Act. The drug industry had argued
that instead of getting seventeen years of patent protection because of what they
said was the slow drug approval process, they were getting less than ten years, so
they wanted a patent extension. This bill allowed them up to five additional years
for a maximum of fourteen years. That was Senator Hatch’s bill, after it was
Congressman Waxman had introduced a generic drug bill. The idea there
was that once the patents had expired, the generic drug company should not have
to redo all the expensive testing to show the drug was safe and effective. It
should be able to rely on the tests that the pharmaceutical company had done, and
its job would be to show that it could make a good copy, which was much
quicker and less expensive.
Mr. Pollak: Were you involved in that as a member of the Nader group?
Mr. Schultz Yes, I represented the consumer groups. There was a coalition of consumer
groups that included the Nader groups, the American Association of Senior
Citizens, Consumers Union, and other groups interested in drug prices. I worked
on this with Nancy Drabble, the head of Congress Watch, the lobbying group.
Nancy was an expert on legislation and knew all the players on Capitol Hill.
We were allowed to be in the drafting sessions and negotiated
amendments. I remember that at one point in this whole process, Congressman
Waxman had made a deal with a couple of the pharmaceutical companies. He
agreed to patent extensions on a few drugs in exchange for their support of the
bill. It split the members of PMA, the companies’ trade association, and was key
to the bill’s passing.
I remember being upset by the deal, particularly since we had not been
consulted. I asked for a meeting with the Congressman, which he granted. At the
meeting I said, “Congressman Waxman, why did you do this horrible thing?”
And he looked at me and said, “Because I wanted a bill.” It was an answer that I
had no response to. But after that I think he felt bad that the deal had surprised us,
and he told his staffer Bill Corr to include us in all the other discussions. We
were part of all the negotiation and drafting sessions after that.
The bill passed the House and went to the Senate at the end of the
session. This is what often happens. It’s a two-year Congress and very often
everything goes to the end, which means there wouldn’t be enough time to defeat
a filibuster even if there were enough votes. As a result, any legislation must be
passed in the Senate by unanimous consent. A single Senator can block a bill.
It passed the House after lots of negotiation. The representatives of the
generic drug industry had managed to bring Senator Hatch along, but in the final
days Senator Howard Metzenbaum of Ohio put a hold on the bill which basically
means he was willing to filibuster and block the bill until he could be satisfied.
His concern was the patent extensions, which were central to the deal that Hatch
and Waxman had made.
Now Public Citizen becomes key in this legislation because we’re the
only ones that Senator Metzenbaum, a very progressive Senator, would listen to.
He’s not going to listen to the pharma companies, he’s not going to listen to
Senator Hatch, he’s not going to listen to the generic drug companies, but he
might listen to Public Citizen. And he was playing hard to get. I remember
Nancy Drabble and I talked about this because we had mixed feelings about the
bill. We made the decision: We needed to have a strong relationship with
Congressman Waxman who supported many of our efforts, so we decided to help
in any way we could.
Meanwhile Senator Metzenbaum was enjoying the attention. Once we
wanted to talk to him and he indicated, “Well, I’m on my way home for dinner
but maybe tomorrow.” Meanwhile time was running out.
Senator Metzenbaum and Senator Hatch’s offices were across the hall
from each other. We were in the position of shuttling back and forth. Now that
he had a deal that the brand drug companies supported, Senator Hatch was
determined to pass this bill and all of a sudden we were his best friends. He
never had any affection for Public Citizen, but now he would call us into his
office, throw his staff out, and strategize with us about how he could help and
what we could do. In the end, we were able to negotiate something with Senator
Metzenbaum. There were a few changes that satisfied him and everybody else,
and the bill passed.
It was a momentous piece of legislation that marked the beginning of the
generic drug industry. Today the generic drug industry manufactures 90% of all
drugs sold in this country, which account for only about 10% of the costs. It was
a very good moment for us.
In addition to litigation and lobbying we did a lot of writing. I wrote oped
articles in The Washington Post, some of them with Ralph Nader. I wrote
articles in scientific journals. The great thing about this job was I didn’t get paid
much but I got paid for all of this. This was all considered part of the work.
Mr. Pollak: You must have worked hard?
Mr. Schultz: I did. I worked all the time.
Mr. Pollak: Just let the record show the period you were with the Nader group.
Mr. Schultz: January 5, 1976, until the very end of 1989.
Mr. Pollak: So, it’s 14 years?
Mr. Schultz: Yes.
Mr. Pollak: And when were you married to Sari?
Mr. Schultz: Sari and I got married in 1988. We met in 1986 so it was at the end of my time
Mr. Pollak: I see. Sari said I need more of you.
Mr. Schultz: Well, that’s not really what happened.
Mr. Pollak: That was a joke.
Mr. Schultz: I know. The amount I worked was probably something of an issue in some of my
relationships. Soon after I met Sari, she became a night police reporter and
worked from maybe 10:00 p.m. until 6:00 in the morning. Sometimes I would
work late and then we’d go out to breakfast after she was done. Her work
schedule was such that my work was never a problem. She worked very hard as
a reporter. So that was never an issue.
One additional thing about the Hatch-Waxman bill. Congressman
Waxman tried to get the generic drug piece passed in the early1980s and Al Gore
was very involved. This was when he was still in the House. In addition to
working with Congressman Waxman, I worked closely with Al Gore and there
was one point when I was assigned to debate the merits of this before
congressional staff. We were having this debate and it was quite interesting
because Al Gore came in and joined my side.
He is a very prepared and very good debater and I remember he was just
doing great. Then he stopped and said you know I don’t think it’s really
appropriate for me to be doing this. It’s probably unfair for your opponent. So he
got up and walked out. He was very accessible and very energetic and very
strong on public policy.
I also participated in the Scheuer-Gore Commission, the Commission on
the Federal Drug Approval Process, which was established by Al Gore and
Congressman James Scheuer. Its charge was to examine the drug approval
process because there had been charges that FDA was taking too long to approve
drugs, longer than Europe. This was called “the drug lag.” I was the consumer
representative on this commission which found that most of the delay was not
due to FDA as many had claimed, but rather how long the pharmaceutical
industry took to test the drugs. There was some criticism of FDA, but through
this commission and work on other legislation I got to know Al Gore.
Mr. Pollak: Do you want to discuss other litigation activity with the Litigation Group?
Mr. Schultz: I did considerable litigation on FDA issues. There were various color additives
that were also carcinogens. Color additives called coal-tar dyes actually made out
of coal tar were shown to be carcinogenic in animals. During the Reagan
Administration, FDA developed a theory that it could do a risk assessment and
show the risk is less than one in a million, so the risk should be allowed because
it’s a trivial risk. The government concocted a legal theory, called a de minimis
amount, as in very little.
After FDA invoked the de minimis exception to the Delaney Clause and
approved one of these carcinogenic color additives, we challenged the decision in
court, arguing that FDA was violating the Delaney Clause.
I argued the case before a D.C. Circuit panel of Judges Harold Greene,
Ruth Bader Ginsburg, and Stephen Williams. My opponent was Peter Barton
Hutt. He had been chief counsel of the FDA during the Nixon Administration
and at the time he was the most prominent food and drug lawyer in the country,
although he didn’t typically appear in court. He had probably convinced the FDA
to adopt the de minimis policy and he argued for the industry that had intervened.
Harold Greene, whose name was ironic given the subject matter of the
case, was an outstanding district court judge who sat on the court of appeals
occasionally, asked me a good question: “Well, if we eliminate this color
additive, what’s the cost of that? I understand these color additives are used to
distinguish drugs and they’re used in cosmetics and for other purposes. Does that
mean that we won’t have this particular color?” And I said, “No. This case is
about Red Number 3, but there’s Red Number 4, Red Number 16, and lots of
other red colors, so nothing would be lost.”
Peter Hutt, when it was his turn, argued that it would be horrible to lose a
color and Judge Greene said, “Well, Mr. Schultz said that there are other colors.
It just doesn’t really matter.” And Peter Hutt said, “Well, Judge Greene, these are
used in cosmetics and it’s kind of like the Mona Lisa, when a woman is using
cosmetics if you eliminate a color, it could have a really important impact. If you
eliminate a color from Michelangelo’s palette, the Mona Lisa wouldn’t look the
same.” At which point Judge Ruth Bader Ginsburg said, “Mr. Hutt, are you
daring to compare the Mona Lisa to cosmetics that a woman uses to color her
face?” And Peter Hutt backed down. He lost the case.
I remember Sari attended the argument and asked, “How long will it take
to get a decision?” When I said it could be six months or a year or more and that I
had one case where the D.C. Circuit took five years, she seemed very surprised
and said, “I don’t understand why they don’t go to their offices and write the
opinion right away.” After all that’s what daily reporters do. The name of the case
is Public Citizen v. Young.10
In addition to this case, I also brought several cases against FDA for
unreasonable delay, arguing that the FDA was required to do something, and it
wasn’t doing it.
We brought these cases in the district court. In some cases, FDA was 30
years late but amazingly we lost a lot of those cases. Although I will say today,
the law has gotten better in this area and FDA has lost a number of cases where it
has missed statutory deadlines for regulator action. In those days the courts were
very receptive to the argument that FDA should get to choose how to use its
10 831 F.2d 1108 (D.C. Cir. 1987).
We brought cases about nitrites, a carcinogen being used as a food
additive in bacon. The issue was whether it was regulated by FDA or USDA,
because if the jurisdiction was with FDA it would have had to have been banned
under the Delaney Clause.
I took over a case called American Public Health Association v.
Veneman11 involving the delays in the FDA’s review of prescription drugs.
When Congress passed the requirement in 1962 that drugs have to be effective —
before that they only had to be proven safe – it told FDA to go back and look at
all the drugs approved between 1938 and 1962 and decide whether they were
effective. FDA didn’t consider this important and took forever to do this. FDA
was much more interested in reviewing new drugs but there was a court order,
and I took over the responsibility of making sure it was enforced. We at Public
Citizen reached a new agreement about a schedule, and I met every six months
with the FDA official who reported to me. They took the deadlines in the
schedule seriously because they knew I could go back to the court if they were
out of compliance. They had been in violation of a court order for years. For me
this was a good management experience. The way to get the federal government
to do something is to set deadlines, require frequent reports and most importantly
stay on top of it. We accomplished a lot and we ultimately got it all done.
Mr. Pollak: You also litigated extensively under the Freedom of Information Act?
11 See 349 F. Supp. 1311 (D.D.C. 1972).
Mr. Schultz: Yes, I did. The Litigation Group had a significant practice litigating cases under
the Freedom of Information Act (FOIA). It was a very important statute to Ralph
Nader because the Act gave the public access to government documents, with
exceptions. I had one case where we argued that the documents for the Office of
Management and Budget (OMB) were subject to FOIA. The White House is
exempt from the Act and the issue was whether OMB is covered by that
exemption. That case ended up being heard en banc in the D.C. Circuit. We
didn’t win but it was an important case.
In most of the other FOIA cases we were trying to get documents that
drug companies had submitted to FDA. Typically, the Health Research Group
was interested in them because they concerned drug safety. We prevailed mostly
through settlement in almost all those cases. The lesson was that if you went to
the trouble to bring the lawsuit against the FDA, the company would intervene.
The FDA usually didn’t care that much and if we brought the case and maybe did
a little discovery, we were getting the documents that we wanted.
Mr. Pollak: Did you think the FOIA instrument was drawn appropriately and worked
Mr. Schultz: It was very beneficial to us. The government hated it. I remember when I left the
Litigation Group, I went to work on Capitol Hill, and I was interviewed by Legal
Times about my new job. The quote that ended up in the article was, “Well, now I
can get documents without going through the Freedom of Information Act.”
Congress has subpoena power and doesn’t recognize a lot of the FOIA
exemptions that apply to the general public. As a result, it had much more access
to documents than I had at Litigation Group.
I have to say that when I later worked in the executive branch, I began to
appreciate some of the FOIA exemptions, and I thought that Congress’s almost
unlimited access to documents was a problem. In the end, it discouraged
government from writing things down.
Mr. Pollak: Tell me about your First Amendment litigation on videotaping of FDA hearings?
Mr. Schultz: We represented some reporters who wanted to videotape an FDA hearing. We
made the argument that the reporters had a First Amendment right to do so and I
think we lost the temporary restraining order and an emergency appeal to the
D.C. Circuit. We didn’t prevail. Later in a speech Judge Patricia Wald remarked
on what an interesting case it was.
Mr. Pollak: Tell me about your highway safety cases, voting rights cases, and the insurance
rebate case.
Mr. Schultz: As I said we represented other Nader groups and public interest groups. Ralph
Nader had started a group called the Center for Auto Safety. Ralph made his
name with Unsafe at any Speed, a book about manufacturing defects in the
Chevrolet Corvair. Joan Claybrook, who became the head of Public Citizen, had
been the director of the National Highway Traffic Safety Administration in the
Carter Administration.
The Reagan Administration weakened automobile standards. One
standard concerned air bags and that case went to the Supreme Court. Another
related to tire standards. I challenged that decision in the D.C. Circuit, and we
In addition, I got involved in a voting rights case about the right to a
referendum in the District of Columbia.
The one other case I’ll mention shows the variety of the work I got to do
there. We got a call from an insurance agent one day, Joseph Blumenthal. He
said, “I work as an insurance agent down here in Florida and I get a fixed
commission. I want to compete by giving a portion of my commission back to my
customers in the form of rebates, but this would be illegal in the State of Florida.
The state says I can’t do that and that I am required to charge a full commission.
Is there anything you can do about this?”
I thought this was an interesting case, but I didn’t know if we could do
anything. I did the research and found that Florida still had substantive due
process which is the outmoded idea that was used to strike down Franklin D.
Roosevelt’s New Deal laws in the 1930s. Ultimately the Supreme Court rejected
the idea that economic legislation could be challenged because it was a violation
of the due process clause. But Florida’s Constitution as interpreted by the Florida
courts still recognized substantive due process.
So, there was room in Florida to argue that a law was unconstitutional
because it was illogical, contrary to public interest, bad for consumers, and served
no legitimate purpose.
We brought the case in Tallahassee. I think I lost it in the trial court, and
I don’t remember the outcome in the Court of Appeals. But in the Florida
Supreme Court, the insurance industry was so concerned about the case that it
hired a former justice from the Florida Supreme Court to argue against me.
Interestingly, the argument was videotaped even though this was rarely done in
those days. The taping was not apparent and when I walked out of the courtroom,
a clerk handed me a tape of the argument. I wasn’t optimistic about my chances,
but when I got the decision it turns out that I’d won in a split decision, and the
law was held to be unconstitutional. It gave me a very good feeling about that
Court. They took the case very seriously and voted against their former
This is the fifth in a series of interviews of William B. Schultz conducted by Stephen J. Pollak on
behalf of the Oral History Project of the District of Columbia Circuit. This interview was
conducted on Thursday, June 17, 2021, in Washington, D.C.
Mr. Pollak: Good morning, Bill Schultz. We’re still discussing your work with the Public
Citizen Litigation Group. I’d like to open by asking you about a major trial in
public liability styled Mink v. University of Chicago.12
Mr. Schultz: I’ll start with telling you about the case. Patsy Mink had been a member of
Congress and Assistant Secretary of State in the Carter Administration. Before all
that she was a student at the University of Chicago Law School in the early
1950s. Growing up in Hawaii she had wanted to go to medical school, but she
wasn’t able to get into any medical schools. She was never sure whether it was
because she was a woman or because of her ethnicity. But she was able to get
into the University of Chicago Law School where, incidentally, she was in the
same class as Robert Bork and Abner Mikva.
Mr. Pollak: I see. And what was her ethnicity?
Mr. Schultz: She was a native Hawaiian – her name is Patsy Takemoto – and she married John
Mink and became pregnant. She went to the clinics at The University of Chicago
for medical care. They gave her a pill they said was a vitamin pill that she should
take every day, which she did dutifully. The doctors also directed her to return to
the clinic periodically for a urine test that turned out had nothing to do with her
medical care, but was required to document whether she was taking this pill. She
12 460 F. Supp. 713 (N.D. Ill. 1978).
subsequently served in Congress, where she oversaw hearings about a drug called
diethylstilbestrol or DES. It was a drug manufactured by Eli Lilly and Company
and it was sold for the prevention of miscarriages. It was given to pregnant
women who had a history of miscarriages to prevent miscarriages, but in fact
there was no evidence that it worked.
This was before Congress passed the Kefauver Amendment requiring
that drugs be proven effective before they could be approved by FDA. Previously
drugs only had to be proven safe. Lilly thought that this drug was so valuable that
maybe it should be given to all pregnant women whether they had a history of
miscarriages or not. They enlisted a professor, Dr. William Dieckmann, at the
University of Chicago to do a study of all pregnant women to see whether this
drug made healthier babies and prevented miscarriages. The trial covered 2,000
pregnant women who sought medical care at the university’s clinics. These
women became subjects of a medical experiment. None of them was told this
even though the experiment occurred after the Nuremberg trials and creation of
the Nuremberg Code requiring informed consent in medical experiments.
One thousand women were given DES and 1,000 women were given a
placebo, so it was a very well-designed study that incidentally showed the drug
had no benefit. In the mid-1970s, there was increasing concern about this drug.
In a famous New England Journal of Medicine article written by Professor Arthur
Herbst in 1971, a study found that the children of women who took DES were
developing a very rare kind of vaginal cancer.
There was all of a sudden great concern and other researchers at the
University of Chicago recognized that they had the perfect sample to study this,
namely the 2,000 women who had participated in Dr. Dieckmann’s experiment.
They decided to investigate the effects of DES on both the children born to
mothers who had been given the drug and the mothers.
The University sent a letter about the follow-up study to the study
participants. Patsy Mink had one child, and on her daughter’s birthday she
received the letter from The University of Chicago saying in effect: You
probably didn’t know it but when you were a student here and were pregnant, you
were part of a medical experiment and now we want you to be a part of the
follow-up study. Patsy Mink was furious. She had conducted hearings in
Congress on DES and knew about the drug very well and about the study and the
risk — she just didn’t know she had taken it. She called Sid Wolfe, head of the
Public Citizen Health Research Group, who was nationally prominent in
attacking drug companies not only for promoting unsafe drugs but also for not
providing adequate informed consent.
She told Sid that she wanted to sue the University of Chicago over this,
but that she couldn’t find a lawyer to take the case. She had gone to many trial
Sid walked across the hall and brought the case to the litigation group.
John Sims, Alan Morrison, and I took on the case. Patsy had lined up two other
women who were also part of the experiment, Gladys Lang and Phyllis Wetherill,
and each of them had had daughters. We didn’t know whether the mothers were
at risk and we didn’t know what the risk was to their daughters. By this time, it
was known that there were abnormal vaginal conditions that could be seen in the
daughters and we knew there was an established very rare cancer. The Litigation
Group generally did not handle traditional product liability cases. We decided to
bring a class action on behalf of the mothers but that the daughters needed their
own legal counsel. We felt that they could have very substantial cases that
lawyers would be interested in bringing. There was nobody else who would
bring the mothers’ case, so it was really on us. We paired up with a small firm in
Chicago, Stack & Filpi. They represented the daughters, and we brought the
class action case on behalf of the mothers.
We had a problem because negligence law in many states, including
Illinois, required an actual injury to recover damages. In Illinois we couldn’t
recover under a negligence theory on the ground that our clients had been
wronged unless we could prove actual physical damages and we didn’t have
evidence of that for these women, so we did a lot of research and we came up
with the novel theory that this was a battery. A battery is a tort, an intentional
touching or act of force to which the other person has not consented. So if you hit
someone over the head you can be sued even if there wasn’t actual injury. Our
theory was this was an unconsented touching. These women had not consented
to taking this drug. Our complaint alleged that the University of Chicago doctors
had committed a battery against these women.
The cases were filed in federal court in Chicago and assigned to Judge
John Grady.
Mr. Pollak: Who represented Eli Lilly? Or the University?
Mr. Schultz: The University’s counsel was James Gladden of Mayer, Brown & Platt and John
Menk, a very colorful lawyer local to Chicago. Lilly was represented by Shook,
Hardy & Bacon, a Kansas City law firm famous for representing the tobacco
industry. The young associate assigned to the case, Steve Parrish, later became
very prominent at Philip Morris. I worked with him quite a few years later in
negotiating tobacco control legislation, when he represented Philip Morris and I
represented the Campaign for Tobacco-Free Kids.
After considering pre-trial motions, Judge Grady upheld our battery
theory and said the complaint could proceed. The case was used in law schools
as an example of a modern application of battery, and I later saw Judge Grady’s
opinion reproduced in a tort textbook.
Mr. Pollak: And although Patsy Mink and others had consented to taking the pill, their
consent was uninformed, so that was the battery?
Mr. Schultz: That was the theory that Judge Grady accepted. The young women had consented
to taking the drug. Although we won on the battery issue Judge Grady denied the
class action, so we had to proceed only on behalf of the three individual women.
These rulings were followed by years of depositions of leading experts. We
deposed Arthur Herbst from Harvard, who had written the article identifying the
link between DES and vaginal cancer in daughters. Dr. Dieckmann, who had
done the experiment, was dead.
We also identified a lot of other women who had been part of this
experiment, and it was scheduled for trial in the early 1980s. We all went to
Chicago in the middle of winter. John Sims and I represented the plaintiffs.
Mr. Pollak: What year had you initiated the case?
Mr. Schultz: I filed the complaint in 1977. I think the trial was 1983. We were pretty
inexperienced. We had never done anything like this. Neither of us had ever
done a jury trial before but that didn’t stop us. I did the opening argument. When
I was telling my sister she said, “You mean they were just guinea pigs?” So I
used that in the opening argument, and John Menk, a very colorful trial lawyer,
attacked me on it. He made fun of the term “guinea pigs” and said these women
were getting the finest medical care known to mankind. And of course, we were
attacked for not being local, being out-of-town lawyers, but the case was front
page news in The Chicago Tribune and the local newspapers because we were
taking on the University of Chicago. Lilly had been dismissed because its only
role in the case was that it supplied the pills for free, but it turned out that the
company was not part of the medical experiment otherwise.
A few things stand out about the trial. First of all, when we were close to
trial it turned out there were a lot of disclosures that hadn’t been made to us by
the lawyers for the University of Chicago. We learned they had played fast and
loose with the rules because later we became friendly with one of their paralegals
who told us they had withheld documents that we had legitimately asked for in
discovery. When we complained to the judge that we hadn’t had a chance to
depose newly named witnesses, the judge ordered that we could take the
depositions during trial. We would be trying the case during the day and take
depositions in the evening or on Saturday. But we managed.
We called about twenty mothers who had been part of the experiment as
witnesses. One of the challenges in the case was that the medical records were a
mess and it turned out the medical records reflected that some of these women
had been informed. Our clients clearly had not, and we thought it was very
helpful to get other women who had been part of the experiment to tell the same
story as our clients were telling. On a day we referred to as Mother’s Day, we
called a parade of twenty women including the wife of a professor at the
University of Chicago. A number of them were associated with the University,
which is why they had privileges at the health clinics.
One expert was a psychiatrist and a professor, and we wanted her to
testify about damages because our only damages were emotional. She had
interviewed extensively each of our three plaintiffs and then provided helpful
testimony. She later told us that her experience as a witness was the most
terrifying experience of her life. It made me realize that we’re all used to the
combat of a courtroom and seeing a jury but to somebody who has never had this
experience, it can be terrifying. She did perfectly well. The cross-examination
had not been particularly brutal.
We stayed in the Union League Club because it was right across the
street from the courthouse. Our three clients also stayed there, and their husbands
came to visit periodically. This was an exclusive club and we would often see the
lawyers for the other side having lunch in the same dining room.
As we neared the end of the trial, they made a settlement proposal. We
settled the case for $225,000 in damages and some relief for the class, even
though it wasn’t a class action. The University agreed that all the women in the
class would receive free medical exams and I think free medical care for the rest
of their lives. Mink v. University of Chicago was quite an experience.
Mr. Pollak: Have you had other jury trials in your career?
Mr. Schultz: Two.
Mr. Pollak: They’re rare.
Mr. Schultz: While I was at the Litigation Group I represented another plaintiff in a jury trial,
which we lost. It was a case on behalf a man who died from the drug
Macrodantin. The drug had been prescribed by his urologist, who didn’t
understand the drug’s side effects.
It turned out he was the only urologist in the entire community in a small
town in North Carolina. Every male on the jury could have expected to go to him
at one time or another. We thought we had a strong case, but we lost.
Mr. Pollak: Do you have any comments on how the jury performed in the Mink case?
Mr. Schultz: We didn’t see the jury perform because the case settled near the end of the trial.
After the verdict we talked to Judge Grady, who had never seemed
particularly receptive. But he didn’t seem hostile to the case either, which shows
he was a good judge. When we talked to him afterwards, he said he thought the
settlement was a little light. So he obviously thought it was a strong case. We
had run into some problems, though. We did one cross-examination where we
had the medical records in front of a witness, and we missed some damaging stuff
in the medical records that came out.
It turned out that these records did reflect that there had been some
consent, not for our clients, but for some of the women. In the middle of the trial,
Sid Wolfe, the Director of the Health Research Group who had brought the case
to us, was in Chicago for a TV interview. We sat down and showed him all the
medical records we planned to use in the case. He went through them with us
and interpreted them. Medical records in those days could be impossible to
interpret particularly with a doctor’s handwriting, which can indecipherable. He
deciphered them for us.
We were concerned the defense would argue that the records showed all
the women had been given informed consent. This seemed weak since the
women, including our clients, had testified that they didn’t consent. But it was
impossible for us to know what the jury would do or how they would value our
clients’ damages.
Our schedule was brutal, as trials are. Our typical day would start at
6:00 a.m. preparing for the day and then we would go to trial. After trial we
would often play squash at the Union League Club, have dinner, and then work
until 2:00 a.m. every night, every weekend. At some point near the end of the
trial, my watch band broke and I needed a new one. I went into a shopping mall
in Chicago, and it felt so strange because all we had been doing or thinking of for
three straight weeks had been this trial and this case.
Mr. Pollak: Well, that was a great experience.
Mr. Schultz: It was a great experience. It was an amazing case. Let me mention one other
thing. Patsy Mink was such an interesting person and had such an interesting
career. She had been elected to Congress in 1965 and lost a race for Senate in
1976. She served as an Assistant Secretary of State during the Carter
Administration, then returned to Hawaii with her husband. She served on the
Honolulu City Council and then returned to Congress in 1990, where she served
until her death in 2002. I got reacquainted with her when I was on Congressman
Waxman’s staff, and we worked on a couple of things together.
Mr. Pollak: I remember her as a capable member of Congress.
Mr. Schultz: She was a true liberal with a lot of guts. At the time there were very few women
members of Congress. She once told me that there was a gym on the Hill with a
male-only swimming pool, and the men all swam nude. She and Bella Abzug
from New York and one other female member decided to integrate the
Congressional swimming pool. They simply showed up, read the sign that said,
“Members Only,” and as members walked in. She said all the men ran, but after
that women members could swim in the pool, too. I assume everyone wore
swimsuits then.
Mr. Pollak: That’s a fascinating commentary. Well, you also engaged in lobbying to some
extent during your time with the Litigation Group. What part of your days were
spent lobbying, about what, and how does that fit into your history?
Mr. Schultz: Public Citizen had a lobbying group, Congress Watch, and the lawyers and
professionals there were full-time lobbyists. But they relied on the expertise of
the members of other groups. If they were lobbying on a health issue, they would
rely on the Health Research Group. If it was a nuclear power interest issue, they
would rely on Public Citizen’s nuclear power group. But as lawyers at the
Litigation Group, we gained a lot of expertise in a range of areas. As a lawyer, if
you’re litigating a case you are required to become expert in the area in order to
do a good job. As a result, Congress Watch often asked other groups frequently
to join them in lobbying efforts.
I was proud to be a registered lobbyist because I was working on what I
thought was the right side of public policy issues. Later on, I’ll tell you about
how that came back to haunt me. I looked it up, and I testified more than twenty
times in Congressional hearings during those years. I also spent considerable time
lobbying, not every day or every week but there were times when it was intense.
I think the three biggest matters I lobbied on were the Hatch-Waxman Act,
nuclear power, and food safety legislation.
As to food safety, in 1981 after Ronald Reagan was elected President and
the Senate turned over, there was a very significant effort to weaken the food
safety laws. I also worked on the Bork nomination near the end of my time at the
Litigation Group, in 1987.
Mr. Pollak: I see. Who headed up the lobbying activities for the Nader group?
Mr. Schultz: Congress Watch was founded by Joan Claybrook in the early 1970s, but in 1976
when Jimmy Carter was elected President, she became head of the National
Highway Traffic Safety Administration. At the end of Carter’s term she returned
to Public Citizen as its president.
After Joan, Mark Green, a longtime Nader associate who went on to run
for Congress and Mayor of New York, ran Congress Watch. But much of the
time it was Nancy Drabble, and she’s the one I remember working with the most.
She married my close friend John Sims, a colleague at the Litigation Group. We
were counsel in the Mink case.
Mr. Pollak: Set the stage. What is the food safety legislation and how did it fit in?
Mr. Schultz: In 1980, along with Ronald Reagan’s election there were devastating losses of
prominent Senate Democrats, including George McGovern and Frank Church.
But most significantly the Senate changed from Democrat to Republican. The
Chair of the Senate Health Committee that covered the Food and Drug
Administration had been Senator Ted Kennedy but Senator Orrin Hatch assumed
the Chair. Early in Reagan’s term Senator Hatch developed a bill with the food
industry that would have brought major changes to the food safety laws,
significantly weakening them.
For example, the Delaney clause that I mentioned, and which banned
carcinogens in food additives, would have been changed. There were numerous
revisions, and this was devastating. The public interest groups organized to lobby
against it and I wrote a paper analyzing the bill, the title of which was “Easy On,
Hard Off.” My thinking was this bill would make it easy to get new food
additives on the market and difficult to take dangerous ones off. The first thing
we did was meet with Senator Kennedy who was going to be our sponsor in the
Mr. Pollak: How did you get your knowledge to write this article, and did you write it at the
front end of the campaign?
Mr. Schultz: I wrote it at the beginning because we needed to analyze the bill.
Mr. Pollak: And the beginning was when?
Mr. Schultz: Early 1981.
Mr. Pollak: I see.
Mr. Schultz: Reagan came into office in 1981 and this issue arose right out of the box. I think
the food industry lawyers had been working on this for some time. I had been at
the Litigation Group for five years and by that time a significant portion of my
practice involved FDA, including many food issues like color additives and food
additives. We met with Senator Kennedy and he was completely depressed. He
said, “I don’t know what I can do. Senator Hatch is in charge. Tell me if you
want me to do anything but I’m not optimistic.”
And then somebody gave my paper to The Washington Post, which
assigned a reporter named Paul Taylor to look into the issue. He called me and
we met at my office to talk about it. It turned out that Paul Taylor was a friend
from college. We recognized each other and I explained the whole thing to him
and told him what was behind it. He wrote a front-page article in The
Washington Post. The theme of the article was that this bill had been written by
food industry lawyers. It had been written by Peter Hutt at Covington, Stuart
Pape at Patton Boggs, and other leading food and drug lawyers.
After the Post article, we met with Senator Kennedy again. He was in a
totally different mood. He said, “I don’t know who got that article in the paper
but that was terrific.” He was completely ginned up and ready for the fight.
Meanwhile we were in discussions with staff and I remember one staff member
in particular, a David Kessler on Senator Hatch’s Committee staff. David Kessler
had gone to both Harvard Medical School and the University of Chicago Law
School. He then did his residency in pediatrics at Johns Hopkins. On the side
during his residency, he moonlighted for Senator Hatch on this bill. I briefed
him; we gave him our paper.
In the end, the bill died. It never got marked up in committee. There may
have been a hearing, but we killed it. That was very satisfying.
Mr. Pollak: So, the merits prevailed?
Mr. Schultz: Yes, and the press was a critical factor.
Mr. Pollak: And where did Senator Hatch stand in the end?
Mr. Schultz: That news story about how his bill had been written by these industry lawyers
was devastating. Senators don’t like that, and it was embarrassing. Senators are
supposed to write bills, not the industry.
Mr. Pollak: So that was a great experience.
Mr. Schultz: That was fun.
Mr. Pollak: And did you work closely on that with any other senators beyond Senator
Mr. Schultz: Not that I remember. On the House side, I’m sure we were in contact with
Congressman Waxman’s staff.
Mr. Pollak: And how did vacancy on the Supreme Court come about?
Mr. Schultz: Justice Powell retired.
Mr. Pollak: I see. Tell us about the nomination and how you became involved, what your
role was, and when it all happened.
Mr. Schultz: I think it was July 1987. Traditionally, Justices announce their retirement at the
end of the term and Justice Powell announced his retirement. He was seen as
somewhere near the center of the Court. Everybody was afraid that President
Reagan might nominate Robert Bork but were hoping that the White House
would see him as too controversial. Sure enough, he nominated Judge Bork in
July 1987. At that time Alan Morrison, the Director of the Litigation Group, was
on an extended trip to China where he was doing some teaching for the summer,
and I was acting director of the Litigation Group. Right after the nomination I
went to the law library at Georgetown University and started researching Judge
Bork’s cases. We were very familiar with Judge Bork because the Litigation
Group argued in the D.C. Circuit all the time.
Mr. Pollak: Why don’t you pause a minute and say something about who Robert Bork was?
Mr. Schultz: Robert Bork had been a been an antitrust professor at Yale Law School. He was
very well regarded as a teacher and scholar, but early in his career he wrote a
number of very provocative articles including a famous one in the University of
Indiana Law Review where he challenged one Warren Court decision after
another.13 He also questioned the legitimacy of Roe v. Wade and all the Supreme
Court’s decisions based on the right of privacy. While his academic work was
highly regarded, he periodically published newspaper and magazine articles that
were all very controversial and very conservative.
He was Solicitor General under President Richard M. Nixon. As part of
the Watergate investigation, Archibald Cox was named special prosecutor. Cox
sought access to White House tapes of incriminating conversations by the
President, as evidence of obstruction of justice in attempting to block
prosecutions related to the Watergate break-in.
Nixon didn’t want the tapes released and Archibald Cox took the case to
the Supreme Court. When Cox insisted on releasing the tapes, Nixon directed the
13 Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971).
Attorney General to fire him. In what was called the Saturday Night Massacre,
Attorney General Elliot Richardson and Deputy Attorney General William
Ruckelshaus resigned rather than follow Nixon’s directive to fire the special
prosecutor. Next in line after Richardson and Ruckelshaus was Solicitor General
Robert Bork, who became Acting Attorney General and carried out Nixon’s order
to fire Archibald Cox.
When we looked into his performance, we found that he had a stellar
record as a law professor and little basis to criticize his performance in the
Solicitor General’s Office. We talked to career prosecutors and other people who
were mostly complimentary.
Bork was nominated and confirmed for a position on the D.C. Circuit,
but he hurt his case to be on the Supreme Court by campaigning for the position
when he was on the D.C. Circuit.
Mr. Pollak: How did he do that?
Mr. Schultz: He spoke at the Federalist Society, a very conservative legal organization. He
gave speeches that were very regressive and right wing, attacking various
cherished Supreme Court doctrines. These speeches were recorded. They
connected the present day to the past articles that were so provocative.
Mr. Pollak: He told the Society what the Society wanted to hear?
Mr. Schultz: Yes, but I don’t think he was just telling them what they wanted to hear. He was
also expressing his own view, and this was a preview to his likely performance
on the Supreme Court. We knew enough to know that public interest law would
suffer if the country traded the more centrist Louis Powell for Robert Bork.
The Litigation Group had a policy never to oppose a Supreme Court
nomination because it frequently litigated cases before the Supreme Court. I was
the acting director and I got everybody together to discuss what to do. We
decided we wanted to take on Judge Bork. We had the full support of Joan
Claybrook, President of Public Citizen, and Ralph Nader, the founder and still
very much a presence at Public Citizen.
First, we analyzed all his opinions. He had sat on about 400 cases. We
examined how he had voted and how his votes compared to other members of the
court. In law school I wrote a law review article on voting patterns in which I
rated Justices from liberal to conservative, comparing how they voted with each
other.14 We wanted to do the same analysis here. How did he vote? How often
did he vote with Abner Mikva, a liberal on the court, or Patricia Wald, also a
We found that Judge Bork very frequently voted with liberals on the
court. This surprised us, but the reason is that a high percentage of the court’s
cases were unanimous, so of course he voted with liberals in those cases. So we
didn’t use our analysis of how often he voted with the liberal members of the
court, but it did please me that it took the White House a month to do the same
thing. A month later the White House came out with the same analysis, arguing
14 William B. Schultz & Philip K. Howard, The Myth of Swing Voting: An Analysis of Voting Patterns on the
Supreme Court, 50 N.Y.U. L. Rev. 798 (1975).
Bork wasn’t an idealogue because he voted with Abner Mikva 80% of the time
Meanwhile we began analyzing the split decisions, the 2-1 decisions with
a majority and a dissent. These were the cases where Judge Bork’s vote made a
difference. Looking at it that way was very revealing. He was part of something
like 58 split decisions. About fifty of them could be categorized in ways that
were revealing: as either for or against access to the courts, for or against
business, for the environmental group or for the government, for or against
consumer groups, labor, and so on. We classified the cases in those categories
and counted them up. It turned out 96% of the time Robert Bork had voted
against environmental groups, against labor, against consumers, or for business.
We did what lawyers do: We wrote a report and every lawyer in the Litigation
Group worked on it. It was a complete team effort.
We divided it up into categories, depending on people’s expertise or what
they wanted to work on, and we put out a 90-page report on the judicial record of
Robert Bork in the D.C. Circuit. Then we got very involved in the lobbying
campaign, which was led by Ralph Neas, director of the Leadership Conference
on Civil Rights.
Ralph was a very skilled coalition builder and lobbyist. It was a
fascinating experience to work with all the civil rights groups involved. The
NAACP and Joe Rauh also played a part.
We had many meetings, and the effort was quite well-organized. We
looked at challenging Judge Bork from every angle. We looked at making a big
deal about his firing Archibald Cox but decided that it probably wasn’t the way to
go. We conducted deep analysis of all his writings, but our role was to evaluate
his judicial record in the D.C. Circuit, which was quite relevant. The organization
People For the American Way used our work to produce ads opposing Bork’s
We tried to find something other than his political philosophy to use in
opposing him. We desperately wanted to find something in his professional life
that was negative, a conflict of interest or inappropriate behavior. But we found
nothing and were left with fighting this nomination based on Judge Bork’s
philosophy, based on the argument that he was an extremist. I think it was the
first time in modern history that a Supreme Court justice was defeated on that
basis. Previously there had always been a conflict of interest or some other kind
of problem because there was a belief that the President got to pick a justice
whose philosophy was consistent with his own.
We had initial discussions about whether we could get Senator Ted
Kennedy and others to filibuster but there was general agreement that it was not
something the Democrats would be willing to do.
When the Bork nomination was announced, Senator Kennedy
immediately put out a very strong statement of opposition referring to the return
of back-alley abortions and that the world of Robert Bork would be a disaster.
Senator Kennedy met with our group many times and told us he made such a
strong statement because he wanted to freeze his colleagues from endorsing Bork
and it worked.
I attended all the hearings, and they were fascinating. We had a war
room in the Senate where our experts waited to be called upon, so for any
question we could immediately give information to the Senate staff to pass on to
the members for further questions. If you remember, Joe Biden was chair of the
Senate Judiciary Committee and running for President at the time, which was
complicated. Ultimately, he dropped out of the Presidential race, but this was all
going on concurrently. Senator Kennedy once again was our champion.
Mr. Pollak: Do you want to say a word about your role in preparing the book?
Mr. Schultz: I directed it. A lot of people worked on it. I probably conceived of it, we figured
out the areas to study: Administrative law, constitutional law, criminal law,
access to courts, and then we agreed who was going to do each chapter. I wrote
the introduction and then edited all the chapters. We didn’t list a principal author.
All the attorneys at the Litigation Group were listed as contributors.
Mr. Pollak: And is there a conclusion?
Mr. Schultz There’s a story about that. When we finished, Ralph Nader read the book and
asked, “So, what’s the conclusion? The conclusion has to be – he should be
defeated?” But we had given this issue serious thought and had decided against
reaching that conclusion. We just wanted our work considered in the
confirmation process.
Ralph said, “You have to have a conclusion.” So I agreed to the
following conclusion which I’ll read it to you: “In our view, Judge Bork’s record
on the D.C. Circuit raises serious issues that should be addressed before any
Senator votes on his nomination to the Supreme Court.” That was our
conclusion. We didn’t make a recommendation. It probably would be hard to get
away with this kind of conclusion today.
Mr. Pollak: It was a different time.
Mr. Schultz: I will tell you my impression of the hearing. The reason we won was because of
Bork. I think when the American people and the Senators saw him, he didn’t
come across as honest or likeable. He really hurt his own case.
The most famous question came from Senator Alan Simpson, who
supported Bork and was trying to be helpful. Senator Simpson asked Judge Bork,
“Why do you want to be on the Supreme Court?” and the judge answered that the
discussions about law with colleagues and attorneys would be “an intellectual
feast.” It was an honest answer, but it was an admission that he didn’t seek the
job to do good, but rather for the intellectual challenge.
Mr. Pollak: So how did you distribute the book, the product of your work?
Mr. Schultz: Initially it was probably typewritten, and we gave it to the staff and everyone
working to oppose the nomination. Ultimately, we printed it as a book. It was
also published as a law review article.15
15 Public Citizen Litigation Group, The Judicial Record of Judge Robert H. Bork (1987), reprinted in 9 CARDOZO L.
REV. 297 (1987).
Mr. Pollak: Did you testify?
Mr. Schultz: No.
Mr. Pollak: Did you lobby Senators?
Mr. Schultz: I’m sure I did. As to testifying, there was going to be a day of public groups
testifying and Biden nixed it, so I don’t think any of the groups testified. I think
we submitted written testimony.
Mr. Pollak: How would you categorize the report? What was the tenor?
Mr. Schultz: It was very critical because we were saying this judge voted against the little guy
almost every time. If it was an environmental group against the government, he
voted against the environmental group, or consumer against the government, he
voted against the consumer. If it was about access to courts, he voted against
access to courts. Every time it mattered to the public interest, he voted against it.
The 2 to 1 panel decisions are a good subset to study because those tended to be
the most important cases. Those are the ones in which somebody takes the
trouble to dissent.
It was an extraordinary revelation. The chapters in the book analyzed the
cases and explained both sides. You really get a sense that we felt his decisions
were wrong. In every one of those cases, there is a judge on the court that agreed
with us.
Mr. Pollak: Would you comment on the relation of those hearings to the recent proceedings
for nominee Brett Kavanaugh or nominee Amy Coney Barrett?
Mr. Schultz: Bork’s nomination was the beginning of modern-day Supreme Court battles. I
think it was the first major public campaign against a Supreme Court nominee
and it certainly opened up the question of challenging a nominee based on
judicial philosophy. There’s been a lot of criticism about how these hearings and
this effort changed judicial confirmations and made them hyper-partisan and
bitter, but it’s legitimate to oppose a nominee based on an extreme philosophy.
By any measure Judge Bork had an extreme philosophy.
Mr. Pollak: Does it cut both ways? Would that test apply to someone who had an extreme
philosophy at the other end of the spectrum?
Mr. Schultz: Well, it should, yes. I have to say I think the Democratic nominees to the
Supreme Court in my lifetime have been moderate, particularly when compared
to some of the appointments in the 40s, 50s, and 60s. I think it’s legitimate to
have the debate about whether the candidate’s philosophy is extreme, and I have
no doubt that Robert Bork’s philosophy was seriously out of step with the
decisions of the Supreme Court over the previous 40 or 50 years.
Mr. Pollak: Did you look into the views of judges who served on the D.C. Circuit with Judge
Bork, and did that play a role in your commentary?
Mr. Schultz: We didn’t have any way of determining their views, or if we learned anything to
make public use of it. The only way we could measure their views was to
evaluate their judicial opinions. From what I could tell, Judge Bork was
personable, and he had a sense of humor. His character was never the issue. The
issue was his judicial philosophy, and Public Citizen felt that as much as we
disagreed with what he did on the D.C. Circuit, it’s not really a measure of what’s
going to happen on the Supreme Court because a circuit judge has to follow
Supreme Court precedent. Many of the most important issues never get to the
appellate court but they do get to the Supreme Court.
But his writings and speeches for the Federalist Society were devastating
in terms of making the case that this was an extremely dangerous appointment for
the Supreme Court. The analysis of his performance on the D.C. Circuit showed
a consistency of what we saw as voting the wrong way. It fit into the entire
Mr. Pollak: In terms of the preparatory work that you’ve done, we’ve come to the end of this
lengthy period where you were a member of the Public Citizen Litigation Group.
I would invite you to look again, identifying major people with whom you served
in that group, and to provide a coda on what it all taught you and where you
wanted to go after you moved from there and indeed what brought about your
move from there? What caused you to leave?
Mr. Schultz: I’ll begin with Ralph Nader who began it all, started modern-day public interest
law and figured out that the public interest lawyer’s role wasn’t just litigating but
also lobbying, working with the press, and so on. From the time he graduated
from law school he dedicated himself to making the United States a better place.
He led this monastic life where he worked all the time and created these
organizations that paid very low salaries but drew very talented people. The three
people he attracted as the leaders for his key groups were extraordinary.
Joan Claybrook was the original head of Congress Watch, Sid Wolfe was
the head of the Health Research Group, and Alan Morrison was the director of
the Litigation Group. With Ralph Nader, these are four of the most talented,
dedicated, hard-working people I have ever known professionally.
Alan was a phenomenal lawyer. He was smart, extremely hard-working,
and very creative. He really knew how to push the law. After law school, work at
a law firm, and a stint as an Assistant U.S. attorney, he somehow became
interested in Ralph Nader and came to Washington to start the Litigation Group
almost fifty years ago. He immediately developed a very sophisticated practice
with the lawyers of the Litigation Group who frequently argued in the Supreme
Court and always in the courts of appeals. We always were given the time and
the room to do the very best legal work we could possibly produce.
Alan created a collaborative atmosphere in the Litigation Group with
people who had spent their whole life competing and achieving and yet as
colleagues always supported each other. There was very little of the destructive
competition that you may see elsewhere. Because of the salaries, people in most
of the Nader groups stayed for two or three years, which is probably what I
expected to do when I started. But the lawyers in the litigation groups stayed for
a long time. They found a way to do it and they stayed because they couldn’t
figure out how there was anything else they could do that they liked more, or a
place they could work with people they liked more.
Sid Wolfe graduated from medical school and then worked as a
researcher at the National Institutes of Health, where he had done some work
with Ralph. Around the time Alan founded the Litigation Group, Sid founded the
Health Research Group. HRG very quickly became the major group challenging
FDA decisions and pushing FDA not only on drugs but also on food additives
and medical devices. He worked a lot to promote worker safety. He’s done a ton
of work on informed consent and on monitoring doctors and criticizing state and
local boards for their failure to protect patients against doctors who have long
histories of committing devastating mistakes.
Sid was a master of media coverage, but he was also a serious scientist.
Most scientists are very, very cautious and Sid was willing to reach his
conclusions and state them in a way that was clear that could be reported by the
media, but no one should mistake that he was serious about getting the science
Joan Claybrook was an unbelievably effective lobbyist. These were all
strong personalities but she’s probably the strongest and I mean that in the best
way. She would push and push on something. She had terrific relationships with
congressional representatives, senators, and staffers on Capitol Hill, and she was
great at pushing anybody she was working with to do more. All these people
were totally dedicated to public interest. It started with auto safety and that was
Joan’s interest, but it obviously spread to many other areas.
As I said the Litigation Group was a very close-knit group of people that
went to lunch every day, played squash after work, spent time together on
weekends. The person I worked with most probably was John Sims, who joined
the Litigation Group a few months before I did. He and I tried the Mink case I
talked about. His mother was a lawyer but had spent her career at the Veterans
Administration and had been treated horribly. I helped with a sex discrimination
case he brought against the Veterans Administration. We tried the case together.
John is a great writer, a great editor, and has a vast knowledge of many areas of
the law. He was an incredible colleague to work with who was always ready to
help. He had a unique way of looking at things that nobody else did.
David Vladeck came a few years after I started and stayed for twentyfive
years, including as director after Alan stepped down. He came from a leftist
family in New York. Both of his parents were lawyers, and he was a terrific
litigator. Together he and I did the Detroit newspaper Supreme Court case and a
lot of others.
I worked a lot with Kathy Meyer, particularly on the FDA cases. She
also was fun to work with and an outstanding attorney. She and Eric
Glitzenstein, another member of the Litigation Group, eventually started their
own successful firm dedicated to animal rights and environmental conservation.
We had a lot of people come through the Litigation Group. I worked
with Diane Cohn on the Convention Center and other cases, and with Reuben
Roberson on an auto antitrust case. Both were talented and fun to work with. Liz
Dickinson worked with us for a semester during law school and she was terrific.
She attended Northeastern Law School. I later recommended her to Judge Bryant
and then to the FDA chief counsel’s office. When I was General Counsel of HHS
and we had to make a change in chief counsel at FDA, I convinced her to take
that position.
Chris Mead is another prominent D.C. lawyer who was there for a
summer while at Yale Law School. Chris wrote his college thesis on heavyweight
boxing champion Joe Louis, which he later turned into a book. I could go on and
on. It was a talented, wonderful, and close-knit group of people.
Mr. Pollak: Why did you leave?
Mr. Schultz: I always had this idea I wanted to go into government and in fact I came close to
leaving at the end of the Carter Administration in 1980. Nancy Buc, Chief
Counsel of the FDA, offered me the job as director of litigation at FDA. In
hindsight it would have been a terrible idea because I would have been replacing
a very popular person at least ten or fifteen years my senior. But that was her
idea and I accepted the job. The night of the election, we were at Larry
Ellsworth’s, another lawyer at the Litigation Group, watching the returns.
Alan Morrison was sitting next to me and we were watching the returns
as Jimmy Carter lost and then one senator after another lost and I just
remembered at some point, it occurred to some of us, “Oh my god, we might lose
both the presidency and the Senate.” It was a shock.
Alan came over and sat next to me and said, “So, you’re thinking about
changing your mind?” and I said, “I don’t know.” But I changed my mind that
night and the next day I told Alan I wanted to stay. He posted a big sign on the
bulletin board – “Schultz Staying.” Reagan’s eight years were followed by
Bush’s four, but at some point a position opened for director of Senator
Metzenbaum’s Antitrust Subcommittee. It was suggested that ultimately Senator
Metzenbaum would be chairman of the Judiciary Committee so it could lead to
being the Judiciary Committee staff director. I applied for and didn’t get it but
my good friend Bill Corr, who worked for Henry Waxman, did.
After Bill got the job, he sat down with me to convince me to take his
job. I was disappointed by the job I didn’t get, and initially was not interested.
But Pat McLain, a close friend who worked for Michigan Congressman John
Dingell, also talked to me. I thought about it and decided I’d been with the
Litigation Group for fourteen years, so I really didn’t have anything to lose. I
believed I could always go back. It didn’t seem like the executive branch was
necessarily going to be available any time soon, so I decided to move to Capitol
Mr. Pollak: I have two other questions. I wanted you to do a brief evaluation of the total
experience at the Public Citizen Litigation Group. What it meant, what you’ve
drawn on as you’ve gone on in your career, how it influenced you when you were
General Counsel at HHS. I also wanted to ask about your personal life during all
this period.
Mr. Schultz: When I started in 1976 at Public Citizen, I had been married for five years. Our
marriage came to an end about 1980 or 1981. I met Sari in 1986 and we married
in 1988. So all of those things happened during this period of time.
Mr. Pollak: You had time for that?
Mr. Schultz: Yes. I didn’t have any kids during that time, so I was able to work as much as I
wanted. I loved it so I worked a ton. I did other things. We didn’t make any
money so we couldn’t go skiing or take fancy trips, but I never felt deprived.
Mr. Pollak: Where did you live during that period?
Mr. Schultz: My first wife Cathy and I had bought a house in Alexandria on South Payne
Street, which we then completely renovated. I did most of the work on it,
including rewiring the house, demolition, and carpentry. Then about 1979 or
1980 we made a huge mistake. We bought a house in D.C. in Woodley Park near
the zoo but hadn’t sold our house in Virginia. Then interest rates started rising.
Rates gradually went to 18% and you couldn’t sell a house. We were in dire
financial straits. I think this is the reason I was interested in going into the
government at the end of the Carter Administration.
My wife was an architect. The interest rates froze construction, and she
lost her job. Eventually we did sell the Virginia house and moved to D.C., but
that house needed a complete renovation. I did most of the work on that, and
then Cathy moved to Ohio to teach and eventually we got divorced. I was living
in Woodley Park when I met Sari and we lived there until 1998.
Mr. Pollak: How do you evaluate your fourteen years at Public Citizen?
Mr. Schultz: I got a great grounding in a range of aspects of the law. That was invaluable
when I worked on the Hill. When there was an issue about access to the courts,
attorney’s fees, the standards of review, administrative law or any issue involving
litigation, I think people listened because of my experience. Obviously, all the
experience with the press, with the Hill, other kinds of experience were
invaluable. But in terms of the management roles I later had at FDA, as Deputy
Commissioner and then as General Counsel of HHS, I think I learned an
enormous amount by watching Alan Morrison and how he managed this very
successful, small group of lawyers. He gave people tremendous responsibility.
Alan had a rule that he would complete everybody’s else work before he did his.
It was a rare event when he took more than a day to edit a brief. He always
worked harder than anybody else. He never told us to work hard but he was the
role model for it.
I always thought there were two ways to manage. One is by instilling fear
in subordinates, and I’ve seen that work. But the other is by doing the work and
being persuasive and gaining respect. That worked best for me.
The experience with oral arguments was very valuable, both the
preparation that goes into it and the discipline.
Mr. Pollak: Well maybe we should put it off there.
Mr. Schultz: Yes.
Mr. Pollak: Until next time. Thank you.
This is the sixth in a series of interviews of William B. Schultz conducted by Stephen J. Pollak
on behalf of the Oral History Project of the District of Columbia Circuit. This interview was
conducted on November 11, 2021, in Washington, D.C.
Mr. Pollak: Good morning. Bill Schultz. We are here in the Pollak kitchen on a bright
sunny morning. We pretty much completed your experiences and comments
about your long service with the Public Citizen Litigation Group during our last
interview in June 2021. So before really closing the book on that, do you want
to add anything to what you have said about those years? And would you like to
comment about or put in context the many writings and your Congressional
testimony that are spread across a summary sheet dated December 2010 that
you have provided?
Mr. Schultz: Well, I had to compile a list of articles and testimony before I went to HHS as
General Counsel which I will give you to attach to this history.
Mr. Pollak: That would be good.
Mr. Schultz: One of the things about Public Citizen Litigation Group is that you got paid to
do almost anything you wanted to do that fell within the general interests of the
organization. If I wanted to spend the morning writing an op-ed piece or spend a
week writing an article, that was never questioned. In fact, it was encouraged
because we were trying to affect public policy, which you do through litigation,
legislation, and petitions to agencies, and through writing. And so this is a list of
articles I wrote over the years.
There are a couple of articles on the Delaney Clause. I litigated issues
about the Delaney Clause, which prohibits approval of cancer-inducing
additives, for many years. The articles are mostly about food and drug law, but
there are some about nuclear power because of my work on the Price Anderson
Act. I wrote op-ed articles in The Washington Post or The New York Times.
Some are in food and drug law journals, and a variety of other places.
There is also a list of Congressional testimony. It turns out that I
testified 36 times. And this reflects the fact that in addition to litigation, I was
very involved in legislative and oversight activities in Congress. When there is a
Congressional hearing on a food and drug issue or regulatory issue, the
committee will typically have the agency involved as the first witness. There
will always be industry witnesses, but the committee typically wants
representation from a consumer or other public interest group. And so to the
extent that I had gained expertise, mostly through litigation, I was a candidate to
Mr. Pollak: What was the procedure, starting first with the writings?
Mr. Schultz: I don’t remember anybody ever questioning the content of anything I wrote.
Like everything we did at the Litigation Group, I am sure anything I wrote, I
would show to one or two other people to get their comments.
Mr. Pollak: And who were those other people?
Mr. Schultz: Typically, colleagues at the Litigation Group. But I might show it to Sid Wolfe
or somebody at the Health Research Group. I wrote an article with Ralph Nader,
so I obviously traded it back and forth with him. But these were mostly articles
that were my idea, something I wanted to write about. I am sure I always showed
it to one or two other colleagues and I always got excellent feedback.
Mr. Pollak: And the same thing with your Congressional testimony?
Mr. Schultz: Yes. Very often I would be working with our lobbying group, Congress Watch,
so I might show it to someone there. All of this was very much in our control. I
suppose if I had offered an opinion that was contrary to something we were
advocating, there would have been a discussion about it. But there was really no
culture of censorship. I was free to write about my opinions.
Mr. Pollak: And who were the people with whom you worked – was that Congress Watch?
Mr. Schultz: So, when Ralph Nader founded Public Citizen, he set up a litigation group, a
health group, and lobbying group. And the Lobbying Group was Congress
Watch. I think Mark Green was head of it for a while, but much of the time
Nancy Drabble was the director. And there were other people that might have
been working on a particular issue.
Mr. Pollak: Do you have anything more that you want to say about those Public Citizen
Mr. Schultz: Ralph Nader’s involvement was interesting. He formed many public interest
groups and then would typically remove himself and send them out on their
own. He started Center for Science in the Public Interest, the leading food
group, and I’ve been on its Board for years. When I was at the Litigation Group,
Ralph wanted to start a group of trial lawyers to do public interest law. He took
me to some of the early meetings. I think mostly because he wanted to convince
trial lawyers that they hire good lawyers at a low cost. His original idea was that
trial lawyers would want to take six months off and come to Washington to do
public interest work. It was called Trial Lawyers for Public Justice.
That was the original idea, but it ended up being another public interest
group, this one funded by trial lawyers, that did amicus briefs and other kinds of
litigation to support policy of interest to trial lawyers.
And it has been very successful.
I talked about case ideas that came from Ralph. Sometimes, I testified
with Ralph on matters. In those days, Ralph Nader was such a huge figure, and it
was a very big deal to testify with him. He was quite interested in the nuclear
power case we brought. And when we won the case in the district court, we had
a press conference in our little office jammed with reporters. I was surprised
that he seemed kind of nervous before the press conference even though he had
done this so many times.
He started Public Citizen with all its component organizations. His
pattern was to start an organization and then to step away, which he did with
Public Citizen eventually in about 1979 or 1980. He didn’t want to manage.
While he was president, he would sign every paycheck and review every
expense. He was a true miser. It drove people nuts to some extent, but it wasn’t
really what he wanted to do. He wanted to write and speak, and he wanted to
start the organizations but didn’t want to run them.
Mr. Pollak: Was he a good judge of personnel?
Mr. Schultz: He certainly did a good job hiring managers for Public Citizen. As I’ve
discussed, Sid Wolfe, Alan Morrison, and Joan Claybrook were exceptionally
talented. Mike Jacobson, director of the Center for Science in the Public
Interest, is a dedicated advocate for food safety and science. Clarence Ditlow,
director of the Center for Auto Safety for forty years, played a role in many auto
recalls like the exploding Ford Pinto gas tanks. This was an enormously talented
group, and they were in these jobs or in public interest for their entire careers.
Mr. Pollak: Do you want to cover meeting Sari Horwitz, your wife?
Mr. Schultz: It was 1986, and I was still at Public Citizen Litigation Group. I had become
close friends with Bill Corr, who worked for Congressman Waxman and was his
FDA health person, and his wife Susan. And they are wonderful people.
After they got engaged, I wanted to take them out to dinner. We went to
a little restaurant in Adams Morgan, and when the check came, they insisted on
paying their share because I was a public interest lobbyist. They were very, very
ethical. They both worked on the Hill at that time.
Later, Susan got the idea to introduce us or to set up Sari and me. And
Bill called me and asked me if I was interested. I think it took a long time for it
to happen. It turned out one of Sari’s colleagues at The Post, Anne Swardson,
who was dating my friend Kerry Scanlon, also wanted to set us up. So we had
two people try to set us up. We first went out on May Day..
Mr. Pollak: In 1986?
Mr. Schultz: In 1986. And we had dinner at the Thai Taste on Connecticut Avenue. I knew
Sari worked in Rockville at the Maryland Bureau for The Post’s Metro section.
And I assumed she must live out there. When I talked to her, it turned out that
she lived essentially a block from me. I lived on Woodley Place and she lived
on Connecticut Avenue in an apartment building — and could practically see my
house from her apartment.
We went on a blind date, and then saw each other all the time. I took
her sailing, and introduced her to my friends John Sims and Nancy Drabble.
And then at the end of the month, Sari went to Coronado Island, near
San Diego. Her mother had won some kind of raffle and had a place to stay out
there for a week. I took her to the airport, and when she got to California, she
called me and said, “You should come.” And I said, “Really.” She said, “Yeah,
yeah, yeah. You should come.” I talked to my friend Kerry Scanlon and he said,
“Yeah, you should do it.” So I went out there and we spent the weekend. I met
her mother and her sister. We never made a decision to live together, but soon
after we were.
Mr. Pollak: When did you marry?
Mr. Schultz: We got married two years later, June 19, 1988.
Mr. Schultz: The summer after we met, we went to Italy.
Mr. Schultz: We were in Rome first and had gone to this restaurant that had been
recommended to us, a wonderful restaurant in Trastevere. We had spent all our
money, and we were walking back to the place where we were staying in Rome.
We were walking through an area where there were bars and people in the street
and everything. It was a wonderful evening. And I just grabbed her and
proposed to her. And Sari’s reaction is, “You can’t do this now. We have to be
somewhere where I know where it is.” And we went to the Trevi Fountain and I
proposed there. And then we stayed up all night talking.
And interestingly in 2016, when we went back to Rome, we decided to
find the spot where I proposed, which was very difficult, but we found it. We
actually found it.
Mr. Pollak: And was there a plaque there? Memorializing…
Mr. Schultz: There should be. It was a little different than we remembered but we are quite
sure that we found it. I remember people spilling out of a bar, but it turned out
that there was a bar there and people being served while standing outside. It
wasn’t a bar with people spilling out. Sari couldn’t believe that as a journalist
she hadn’t written down the name of the street.
Mr. Pollak: And where were you married?
Mr. Schultz: We were married here. The wedding was in Maryland, at an estate. We didn’t
want to be married in Maryland, so we got our license in D.C. and had Judge
Bryant marry us the day before in our house on Woodley Place. At the wedding
we didn’t tell anybody, and the guests witnessed us being married by a rabbi.
Mr. Pollak: So, you’ve been married about thirty-seven years.
Mr. Schultz: Thirty-three years.
Mr. Schultz: It’s been a good long time. Not as long as you.
Mr. Pollak: No. But you will be.
Mr. Schultz: It’s been a great and wonderful marriage. I’m very fortunate.
Mr. Pollak: Well. What next?
Mr. Schultz: So next is Henry Waxman and the Energy & Commerce Committee’s
Subcommittee on Health and the Environment.
Mr. Pollak: And how did that come about?
Mr. Schultz: At some point, I learned that there was an opening to be staff director for
Senator Metzenbaum on the Subcommittee on Competition Policy, Antitrust,
and Consumer Rights, a subcommittee of the Judiciary Committee. I had
worked with the Committee staff on the Bork hearings and other matters, and I
applied for the position. I was interviewed by Senator Metzenbaum. One of the
other applicants, Bill Corr, my good friend in Congressman Waxman’s office,
got the job.
Bill then talked with me about taking his job as staff counsel of the
Subcommittee on Health and the Environment. It’s a staff of about ten and they
supported Henry Waxman on all his work.
I was disappointed that I didn’t get the Senate subcommittee job and
didn’t think I was really interested in the House position. I wanted to be a staff
director, but not a staff member. But I talked to Bill and he was very persuasive.
And my friend Pat McLain, who had worked for Dingell’s Oversight Committee
and had become a good friend, was very persuasive. And then I decided to see if
I could talk to Abner Mikva about it because Judge Mikva was both a judge on
the D.C. Circuit and had been a Congressman for a number of years. I didn’t
know him personally but had argued several cases before him, and he agreed to
talk to me, so I went to his chambers and we talked about it.
Judge Mikva was encouraging. I don’t remember the details but he
must have talked about Congressman Waxman’s talent as a legislator. He said
that Waxman was a tough boss. If you didn’t make the cut, he would get rid of
After thinking about it, I decided I didn’t have anything to lose. I had
always been interested in working in government but almost my whole career at
Public Citizen had been during Republican administrations, and it wasn’t clear
when that was going to end. So I decided to do it.
Mr. Pollak: And did you then deal with the Committee Chair? Waxman?
Mr. Schultz: Bill Corr arranged for me to be interviewed by Congressman Waxman. I was
interviewed by him and Karen Nelson, who was staff director of the
Subcommittee. The full committee was the Committee on Energy and
Commerce, was chaired by John Dingell of Michigan, a very powerful long-time
representative. Congressman Dingell also chaired the Energy and Commerce
Oversight Subcommittee. That’s where Pat McLain had worked. But there were
others, on communications and on various topics that the full committee
covered. The committee had very broad jurisdiction. The Subcommittee on
Health and the Environment had jurisdiction over the Food and Drug
Administration, Medicare, the Centers for Disease Control and Prevention, and
many of the public health agencies. It also had broad environmental jurisdiction
over EPA.
Mr. Pollak: Would you pause and explain who controlled the House at that time.
Mr. Schultz: The Democrats controlled the House and had since the mid-1950s. I don’t
remember much of the interview, but I asked Congressman Waxman whether he
had designs on running for Senate from California. And his answer to me was,
“Why would I want to do that? I’d have to be junior to Teddy Kennedy.”
Senator Kennedy was chair of the Senate Health Committee. Today it’s called
the Senate HELP Committee because it covers health, education, labor, and
pensions. Although Congressman Waxman was chair of a House subcommittee,
he was very powerful and considered himself to be an equal of Senator
Congressman Waxman was often in conflict with Congressman Dingell,
particularly over environmental issues, because Congressman Dingell
represented Detroit and the auto makers. Congressman Waxman was seeking to
strengthen the environmental laws and particularly the Clean Air Act. On health
issues, they had common goals but theirs was never a close working relationship
and there were plenty of conflicts.
Mr. Pollak: You spent four years at least, or maybe a little more, in what position with the
Waxman subcommittee?
Mr. Schultz: I was counsel to the committee for five years. Karen Nelson was staff director,
and there were seven other staff members. I was one. It was an extraordinary
staff, as talented as the Litigation Group. The difference was they didn’t get
credit for their work. As a staff member, you are not the one signing the briefs
or signing the bills; you’re very much in the background. The staff was
extremely dedicated, and most planned to stay with Congressman Waxman for
their careers. The Director, Karen Nelson, was probably the most talented
staffer I worked with on the Hill, and even more in the background than the rest
of us.
I didn’t know her well before I began working with the Committee
because even though I had been in many meetings with her, she was always very
quiet. She just never pushed herself forward, but she was a master of both
substance and procedure.
Karen is an extraordinary person. She left work around six every night
because she always had a full evening scheduled. She had season tickets to the
Wizards. She had tickets to the Baltimore Orioles in those days. She had tickets
to the opera. She had a regular bridge game and book groups. Every year she
would have a party because she would buy eight season basketball tickets and
the party was attended by much of the Washington Democratic public health
community. You would sign up for a certain number of these tickets at this
party and you would draw a number, and then you would get to pick the games
you were going to go to. And then she would spend the year rearranging the
schedule to accommodate everyone’s busy lives.
Karen brought people together. She had and still has a Kentucky Derby
party every year. And after the staff moved on, except during Covid we’ve had
lunch every month. We have a holiday party every year at our house, all for the
same group. It’s been a group that has really kept together.
Phil Barnett and Greg Wetstone, both environmental lawyers, are
enormous talents. Phil Schiliro was the staff director of Congressman
Waxman’s personal office. Tim Westmoreland went to Yale Law School and
started working on AIDS issues and legislation, including the important Ryan
White CARE Act, while he was law school.
He began working for the subcommittee, even though he had not
graduated from law school. When Democrats lost the House majority twenty
years later, it was time for him to leave and he wanted to teach at Georgetown
University Law Center. Only then did he complete his final his paper and
receive his law degree.
Andy Schneider was the expert on Medicaid. He and Henry Waxman
completely transformed the Medicaid law and figured out a way to fund the
Children’s Health Insurance Program and to expand Medicaid in various ways.
Mike Hash was the Medicare expert. Each of these people were probably the
most knowledgeable on the Hill on whatever their subject area was.
Mr. Pollak: Did any of them become members of the executive branch? And leave the Hill?
Mr. Schultz: Bill Corr, my predecessor, was a Deputy Assistant Secretary of Health and
Human Services and Chief of Staff to HHS Secretary Donna Shalala in the
Obama Administration, he was the Deputy Secretary of HHS. Phil Schiliro
became counsel to Senate Majority Leader Tom Daschle and then had positions
in the Obama White House, among them Assistant to the President and Director
of Legislative Affairs. Mike Hash was head of the HHS Centers for Medicare
and Medicaid at the end of the Clinton Administration. During the Obama
Administration he worked in the White House on the enactment of the
Affordable Care Act and then as head of the Center for Consumer Information
and Insurance Oversight, or CCIIO, the component of HHS charged with
implementing the ACA. Andy Schneider had a role in the Medicaid Agency
during the Obama Administration. Ruth Katz became Dean of the George
Washington School of Public Health. Phil Barnett and Karen Nelson stayed with
Congressman Waxman. Phil Barnett briefly worked for David Kessler and me in
the Clinton Administration. He then returned to the Hill as staff director of the
House Oversight Committee after Congressman Waxman became chairman
when the Democrats regained control of the House. Everyone continued to work
supporting the goals they had achieved with Congressman Waxman.
Mr. Pollak: So, what were relations with the Republican staff members? What were the
relations between Congressman Waxman and others in the majority with the
minority juxtaposed against, you might say, today?
Mr. Schultz: He understood that as a member of the majority party, he had to work with the
minority and formed solid working relationships with some of his Republican
counterparts, including Ed Madigan, the top Republican or ranking member of
the full committee, and Tom Bliley, the ranking member of the subcommittee.
Tom Bliley was from Richmond and congressman for tobacco giant Philip
Morris. Madigan was a conservative as well. But it was a productive working
relationship, and we forged a number of deals.
We knew we couldn’t pass legislation without getting Republicans on
board. I worked most with Republican staffers Mary McGrane and Howard
Cohen. Mary was viewed as a very difficult person. The first time I was to meet
with her, we were working on a bill to amend the Orphan Drug Act. I was
working on the bill with Tim Westmoreland, and as we were scheduling the
meeting Tim said, “We go visit her. We go to her office.” This was a way of
showing respect.
It was clear that she was suspicious of me because I had come from one
of Ralph Nader’s groups and she probably assumed that I would be an
uncompromising progressive ideologue. In the end we formed a very close
relationship. It was a matter of trust. Like most people, Mary didn’t want to
look bad. And I made sure that I protected her wherever I could, and we reached
agreements on a number of important bills. In fact, that first year, she was
working on the first amendments to the Medical Device Act since 1976 with
another member of our staff with whom she didn’t get along. It looked like the
bill could pass but she refused to work with this other member and asked to
work with me. We became friends and it ended up being an excellent
Mr. Pollak: And how did you understand the objectives that the Republicans were seeking to
achieve as compared to what Congressman Waxman was seeking to achieve?
Mr. Schultz: With respect to staff, there were lots of good relationships across party lines.
There were a lot of friendships, even though on many things we had real
disagreements. And it’s not as though there weren’t arguments or accusations.
It wasn’t all smooth, but there were real friendships.
Mr. Pollak: So how was this experience different from being in a litigation shop?
Mr. Schultz: In a number of ways. First of all, litigation is endless. I mentioned one case, a
challenge to FDA’s review of over-the-counter drugs, that I was assigned my
first day at the Litigation Group. A version of that case was still active when I
left fourteen years later. That was an extreme example, but it wasn’t unusual for
a case to take five years or longer. Legislation is on a two-year cycle. Each
Congress lasts for two years and then you start over again. Anything you
wanted to accomplish you had to get done within that two-year cycle. This
created a deadline that moved things along. And at the end of the Congress, we
worked constantly. It was not unusual to be up all night. Once I was up two
nights in a row.
During my first year, which was the second year of that Congress,
Congressman Waxman had ten bills on the House floor that he was trying to
pass, including the Clean Air Act of 1990, the Nutrition Labeling Act, medical
device amendments, and Orphan Drug Act amendments. And, of course, once a
bill passes in the House, it still has to pass in the Senate.
It was a very exciting job with a lot of negotiating, a lot of back and
forth. And I’ve alluded to the importance of relationships. In litigation, you are
presenting to a judge. You have to deal with counsel for your opponent. Those
relationships matter to some extent but on Capitol Hill it’s all about
relationships. You’re aware that one staff member can block a lot of good work
by another.
Also, the opportunities for impact are enormous. If you’re working for
a member who is passing legislation, which I was, the staff typically writes and
negotiates the legislation as well as the committee report. If the bill has been
negotiated with Republican staff, there typically won’t be a minority report. I
used to think that you could resolve a hundred lawsuits in a single committee
report. The members paid little or no attention to the committee reports and
rarely to the language of the legislation. The work was done by the committee
staff of both parties, which had to reach agreement for legislation to be enacted.
The process of finalizing documents was different. Like a Supreme
Court brief, a committee report is printed professionally. After I wrote my first
report, it was reviewed, everybody signed off on it, I proofread it, and then sent
it to be printed. And unlike a brief, there was no opportunity to review proofs. I
simply received the printed version.
When I started reading my first report, I spotted at least five typos. And
when I raised this with the clerk for the full committee who was in charge of
printing she said, “There’s nothing we can do about it. You just have to live
with it.” There was a lot to get used to.
The laws were written by legislative counsel. If you were getting ready
to draft a law, you would outline it and then go to the House legislative counsel,
the experts on drafting legislation. They would create a draft, and then there
would be a lot of back and forth. As the negotiation was done or as amendments
were drafted, those were also typically drafted by legislative counsel. I had the
service of real legislative expertise, and the House legislative counsel in those
years was far superior to the Senate counsel.
Mr. Pollak: Now who was that? By name.
Mr. Schultz: David Meade headed the office. He was also the counsel who drafted FDA
legislation and almost everything I did. Some of the people in that office were
absolutely brilliant. And again, they are all unsung heroes. You never read
about them in the newspapers, but they are skilled experts at what they do.
I should also note Henry Waxman’s management style. His philosophy
was to give his staff enormous responsibility and always to back them up.
Everybody on the Hill knew that if a Waxman staff member presented
something, he was really speaking for Henry Waxman. And it gave Henry
enormous influence.
I’ll give you an example that relates to federal preemption of state laws.
This was often a business priority since businesses were seeking ways to avoid
state regulation. The over-the-counter drug industry sought preemption to avoid
state laws requiring, for example, special labeling, such as pregnancy warnings
about drugs and so on. At the Litigation Group I had gotten to know Jim Cope
who was president of the Proprietary Association, the trade association for the
over-the-counter drug industry. They intervened in our case about over-thecounter
drug review.
Jim was a lobbyist and had a friendship or relationship with
Congressman Waxman. He was trying to get me to agree to some language that
would preempt state laws for over-the-counter drugs, and he wasn’t getting
anywhere, so he asked to meet with Congressman Waxman without staff. Henry
granted the meeting and afterwards Jim asked to meet with me. The meeting
with Waxman hadn’t gone well. Jim told me that Henry said Jim had to talk to
me and persuade me of Jim’s position. That was Henry’s way, and everybody on
the Hill understood they had to deal with his staff and that the staff spoke for
Mr. Pollak: Talk about how Congressman Waxman then worked his own will through his
Mr. Schultz: Well, we were expected to brief him on the issues that were important enough to
rise to his level. There were a lot of things we did that, in our judgment, he
wouldn’t be interested in or we knew would be consistent with what he wanted.
But we were expected to keep him informed and tell him what we thought he
needed to know. For me, it worked out very well.
I don’t remember making a decision and Henry later saying: “That was a
mistake.” It was a small staff, and we had a lot of contact with him. He stayed
in the background of a lot of the negotiations, but he was always there when you
needed him.
Once there was a deviation from this practice. It’s recounted in a book
called The Waxman Report that Henry wrote with Josh Green about his years in
Congress. In the book he recounts when the industry was trying to get legislation
passed that would weaken FDA’s regulation of dietary supplements. It was very,
very contentious and the House and Senate negotiated the details of the bill.
Henry recounts in this book an important issue about whether certain kinds of
claims were going to be allowed on dietary supplement labels. These were not
claims about treating diseases but about what is called structure and function.
For example, a claim that a dietary supplement will boost your immune system,
increase antibodies, or make your bones stronger. The Senate and the industry
had been advocating for this provision, and Henry had been opposing it. During
negotiations, Congressman Dingell, whom we were trying to keep close to us on
this, suggested a disclaimer: “Well what if we just had a disclaimer. So, we
allow the claim but the label says this isn’t approved by the FDA.” Henry
agreed to it. And he says in his book that he looked at his staff, and I suspect he
was referring to me, who looked crestfallen. He realized that he didn’t do what
he’d always done, which was never to agree to anything without consulting his
staff, whom he regarded as the experts. And years later at a party, he apologized
to me for this. It was seared in his memory because it was so different from the
way he usually managed his staff.
Mr. Pollak: Very, very interesting. Well. You were going to look at your first year on
Capitol Hill, what legislation you worked on, and what became of it. I’d like
you to identify whether your first year was the ending year of a Congress.
Mr. Schultz: It was. My first year, 1990, was the second and last year of the 101st Congress.
So, we had to either pass the legislation or start over in the following Congress.
Mr. Pollak: What was the focus of your first year and your own role?
Mr. Schultz: I worked on several bills: The Nutrition Labeling Act, which was the most
important one; the Medical Device Amendments, which were the first
amendments to the 1976 Medical Device Act; and amendments to the Orphan
Drug Act, a law that provides special rules for the approval of drugs for very
rare diseases. The phrase “orphan drug” comes from the idea that there were
drugs that could treat rare diseases but were never developed because they
weren’t profitable enough for the drug companies.
The Orphan Drug Act created a structure that provided incentives for
industry. The key incentive was that if a company had an orphan drug, even if
the patents expired they got seven years of marketing exclusivity, guaranteeing
seven years with no competition. There was also a grant program and the law
conferred tax credits for clinical testing. However, by 1990 to almost ten years
later, the Orphan Drug Act had been used for some very profitable drugs. Even
though to qualify the disease population had to be under 200,000, it turned out
with increased prices drug manufacturers could make a lot of money in a
population of fewer than 200,000 patients. Among them were AIDS drugs and
human growth hormone, a drug sold to stimulate growth in children who were of
short stature that cost $10,000 or $25,000 that was seen as an enormous
opportunity for profit. Of course, today, drugs can cost $100,000 or even
$500,000 per year.
Our bill aimed to place some limit on which drugs could qualify, and it
was vigorously opposed by the drug industry that was by then making vast sums
of money from orphan drugs. I negotiated a deal with Mary McGrane, our
Republican counterpart, in which we got part of what we wanted. It passed in
the House, maybe almost unanimously, and I think it was passed in the Senate
unanimously. It went to President George H. W. Bush to sign, but he vetoed it
even though it essentially had unanimous support in both the House and the
Senate. It appeared somebody from the industry got to him, or to his staff.
Mr. Pollak: You have any comments? Special comments to make about these other major
pieces of legislation in that first year?
Mr. Schultz: It’s worth talking about the Nutrition Labeling Act because it is such an
important piece of legislation and the negotiations were interesting. This is the
law that requires nutritional information on food labels. So today if you buy
almost any canned or frozen food, there is a label that says how many calories
and various other nutrients it contains. The bill also regulated health claims and
established the rules for claiming that a food will prevent disease or is otherwise
beneficial. It was a highly contested piece of legislation. Before the bill passed
when you bought food, you had no way of knowing how many calories it had, its
cholesterol level, or \the fat content. And our position benefited from the fact
that many middle-aged, senior male members of Congress were watching their
calories and cholesterol and were very frustrated that they couldn’t get
information on what was in the food they were purchasing. The National
Academy of Sciences issued a study of food labels, and then Congressman
Waxman and Senator Metzenbaum sponsored legislation. Senator Kennedy may
have indicated he wasn’t interested in the topic.
They introduced the Nutrition Labeling and Education Act, or NLEA.
The Subcommittee held a hearing before I joined the staff, but it was a very
contentious hearing and there were questions about the bill’s fate.
The NLEA had been skillfully drafted by Bill Corr. One of the big
concerns, not surprisingly, had to do with preemption. This derived from the
fact that California had adopted an initiative called Proposition 65. Proposition
65 required that any product, including food products, that had a carcinogen
known to the State of California had to be labeled as such in California. This
applied to food, to drugs, to gasoline, and to all other consumer products.
Industry hated Proposition 65, and ordinarily a food labeling bill would have
been a perfect vehicle to preempt Proposition 65 as it applied to food.
Proposition 65 was a California initiative designed to make products safer by
eliminating carcinogens, and Congressman Waxman didn’t want to support a bill
which would have preempted or nullified this home state initiative.
Bill Corr knew this when he drafted the Nutrition Labeling Act, so as
the Waxman staff often did, he consulted with the House Parliamentarian to
figure out how to draft legislation in which a Proposition 65 Amendment would
not be germane, meaning that the amendment couldn’t be added to the bill
because it wasn’t relevant. Bill drafted a food labeling bill that never mentioned
food; instead it referred throughout to nutrients. He did so because food has
nutrients, but it also has carcinogens, and a Proposition 65 Amendment would
have been germane. But nutrients are not carcinogens. The NLEA was drafted
that way and having the approval of the Parliamentarian gave us protection on
the House Floor that there couldn’t be an amendment to preempt Proposition 65.
When I negotiated with the Madigan staff, who were representing the
Republican members, we resolved many issues. but we could not reach an
agreement on Proposition 65. In the full committee markup, everything went
smoothly until Congressman Madigan introduced his amendment to preempt
Proposition 65, followed by Congressman Waxman raising a point of order to
argue that the amendment wasn’t germane. We understood that the
Parliamentarian doesn’t control the committee, and that Chairman Dingell could
rule either way. Chairman Dingell was generally supportive of the bill, but he
didn’t have the greatest relationship with Congressman Waxman because the
Clean Air Act amendments were also being negotiated at that time. We didn’t
know how he was going to rule.
We made our arguments to Dingell’s staff. We told him about the
Parliamentarian’s ruling, thinking that would mean something to him, but there
was no guarantee. And if he allowed the amendment, then we had no protection
on the House floor. The amendment would be in the bill, and after that the
germaneness of the amendment didn’t matter.
After Congressman Waxman made his point of order, Dingell, who was
a very large man, ordered his staff to bring in the largest dictionary I had ever
seen. He opened the dictionary, turned to the word “nutrient,” and read the
definition. He then turned to the word “carcinogen” and read the definition.
After all this drama and some time to think, he ruled that the amendment is not
This meant it could not be voted on in the full committee, which created
the pathway to pass the Nutrition Labeling and Education Act.
Mr. Pollak: Do you think he had prepared with his staff to consult this big dictionary?
Mr. Schultz: Yes. His staff had that dictionary ready, and it was very dramatic. This meant
that we could get the bill passed in the House, but it was questionable whether
we could get it passed in the Senate, particularly since we were at the end of a
Session and time was very precious. At the end of a Session, it’s not possible to
allocate the time needed to invoke cloture to defeat a filibuster.
As you know under the Senate rules, if a single senator objects and
demands a vote, the matter can be debated or filibustered indefinitely. To cut off
debate takes many hours which are not available at the end of the Session. This
means that a single senator could block any bill unless it’s designated as very
high priority.
Mr. Schultz: As a result, we engaged in an extended negotiation with the food industry
because we knew if we could get their agreement, we would have a much better
chance of getting it passed in the Senate. The industry was represented by Peter
Barton Hutt of Covington & Burling, who was the lead lawyer for the Grocery
Manufacturers Association. We also had to satisfy the Food Processors
Association and trade associations representing grocers and other interests.
There were many details to be worked out, but ultimately we agreed to
preempt the states as to some aspects of the food label, but not on Proposition
65. For example, FDA has standards that define certain foods. In the case of
cream cheese, FDA might have one definition while a state might have another.
Similarly, FDA might require that maple syrup have a certain percentage of
maple syrup and a state might require a different percentage, as Vermont did for
maple syrup.
In these long negotiations, we agreed to narrow preemptions of some of
these provisions. That empowered Peter Hutt to go to the industry and say,
“Look. You’re getting a great deal. You’ve gotten Henry Waxman to agree to
preempt some state laws.” And Congressman Waxman didn’t really have a
problem with it. I think he felt that with a strong FDA, strong national
standards, and national products, it wasn’t necessarily a good idea to have
individual state standards particularly when you are talking about the label. This
wasn’t about food safety or food carcinogens. It was about what was on the
The compromise angered the lobbyists for the consumer groups, who
were unhappy with me. The Center for Science in the Public Interest had
sponsored the bill, but the consumers’ lobbyists wanted to oppose it because of
the preemption. It did pass and today CSPI sees it as one of their greatest
achievements. But there were some rough moments during the negotiations.
We reached a deal with the grocery stores that the labeling there would be done
by signs rather than directly on the fresh produce. We agreed to various
exemptions for small businesses.
One of the interesting things about legislating in the House is that after
the committee reports the bill out, you can rewrite the entire bill, as we did here,
as long as support is strong enough to qualify for the suspension calendar. The
suspension calendar is a decision made by House leadership where all the Rules
are suspended. The bill doesn’t go through the Rules Committee and there are
no amendments. Debate is limited to 40 minutes for each side and 60 percent of
the members must vote to pass it. This was the path we used for a lot of our
legislation, including the NLEA.
Mr. Pollak: Tell me, how did you spend your days? What did you do?
Mr. Schultz: In addition to negotiations, I spent some time drafting legislation. I spent time
preparing for hearings.
Mr. Pollak: What’s the substance of what you did to prepare for a hearing?
Mr. Schultz: Often I spent time preparing witnesses. David Kessler often jokes about the
timing of my preparation with him. When he became Commissioner of FDA, he
testified at a number of hearings including the tobacco hearings, which I’ll talk
about at some point. I always wanted to make him look good. I would call at
eleven o’clock at night after I had finished the questions, read him the questions,
and we’d discuss the answers. The result could be a very successful hearing. I
spent considerable time with Administration officials.
We conducted both legislative hearings and oversight hearings. For the
oversight hearings, there can be an enormous amount of preparation, including
witness interviews and document review.
Sometimes the negotiations were to satisfy a single member. In the case
of the NLEA, one member, Roy Rowland, a Democratic congressman from
Georgia, wanted us to resolve an issue about Vidalia onions sold in liquor stores
in Georgia. The liquor stores did not want to be required to have a nutrition
label on their Vidalia onions, which seemed reasonable as long as it didn’t drive
a hole through the rest of the bill. So we wrote an amendment exempting
Vidalia onions and any store that had a very small food sales.
Mr. Pollak: Did you draft the Committee Reports?
Mr. Schultz: Yes. I drafted the reports for the bills on which I worked. If it was an agreed-to
bill, we would show it to the minority staff and get their comments in an attempt
to avoid a dissenting report.
I’ll mention something about office space. I was forty years old and had
always had my own office, but it didn’t work that way on the Hill. Everybody
shared offices. The primary offices were in the Rayburn Building because that’s
where the hearings were held and that was where the congressmen had their
offices. Most of the staff offices were in House Annex One near the Rayburn
Office Building. The Republicans were in House Annex Two, which was much
farther away. House Annex One, where I had my office, was an old building
that was so precarious the file cabinets could only be two drawers high.
When I moved in, I replaced Bill Corr. Moving in essentially amounted
to sitting at Bill’s desk. The nameplate on the mailbox said Bill, so we didn’t
even have to change that. I shared an office with Phil Barnett, and the first time
I heard him talking on the phone it was jarring. I wasn’t sure how this would
work since we were on the phone fairly frequently. But it worked out. I shared
an office with Phil for five years and most of the time we worked on completely
different topics because he worked on the Clean Air Act and environmental
legislation. At the end, we worked together on tobacco.
Mr. Pollak: And having been a litigator, did you bring a special awareness when you worked
on reports about the legislation?
Mr. Schultz: Yes, I think the litigation background, the regulatory background, and the
administrative background were very helpful. Because of my litigation
background, I had some sense of what issues could be litigated. I tried to do
everything I could to resolve as much potential litigation as I could in legislation
and in the Committee Reports. In those days, courts actually paid a lot of
attention to legislative history, and I knew very well how the courts weighed
reports as opposed to floor statements as opposed to testimony at hearings. It
was quite helpful and people on the other staff looked to me for that expertise.
Mr. Pollak: What happened to the Nutrition Labeling Act? Was it adopted in that Congress?
Mr. Schultz: Yes. It passed the House and we had to go to the Senate. Even though the
industry was on board, a number of senators had things they wanted as a
condition to passing the bill. We were particularly disadvantaged because our
sponsor was Senator Metzenbaum, who was famous for blocking legislation
through what was called “hold.” When a bill was ready to go to the Senate floor
for a vote, a notice was sent around to the senators. If a senator places a hold, the
bill is blocked until that hold is resolved unless the leadership is willing to go
through cloture procedures to override a filibuster.
In this case there were a number of holds I had to resolve one-by-one.
The one that I remember was by Senator Jim Jeffords of Vermont who was upset
because the bill preempted state food standards, including the food standard for
maple syrup. The FDA food standard required a certain percentage of maple
syrup in products labeled “maple syrup,” but Vermont had its own special food
standard requiring a higher percentage. Senator Jeffords wasn’t going to allow a
bill to be enacted that overrode what was so special about Vermont maple syrup,
one of his state’s signature products.
As a result, if you read the Nutrition Labeling Act very carefully, you’ll
see an exemption for the preemption of the food standards for maple syrup. We
added that provision for Senator Jeffords. We resolved all the holds, and the bill
passed the Senate unanimously. It had to be unanimous at that time of year in
order to pass.
Mr. Pollak: And how did it fare once it was out in the world?
Mr. Schultz: I think it’s seen as a great success. Consumers love the nutrition label. David
Kessler was by this time the FDA Commissioner and he hired an outside group
to design the label.
Before the bill became effective, FDA had to issue detailed regulations
standardizing such things as the serving size for each product. FDA was
notorious for taking forever to issue regulations. The prospect was that we
would pass this important legislation and it might be ten years before the
implementing regulations were issued. To address this possibility we added a
unique provision, and this is where I benefited from my experience litigating
administrative law cases. The provision said the agency had one year to do a
proposed rule and one year to do the final rule. If the agency missed the deadline
for the final rule, the proposed rule would become final. That’s what passed,
and it worked. FDA got this regulation out in two years. Part of that was due to
the focus of David Kessler and, I think, part of it was the pressure of that
The other half of the bill regulated health claims, and this was the most
controversial part. The NLEA set a standard for claiming that a food product
improved health. The FDA issued a regulation defining the health claim
standard, which required significant scientific agreement, limiting the kinds of
claims made on food to those that are supported by scientific evidence and
approved in advance by FDA.
I should mention that Senator Hatch’s price for agreeing to the bill was
the addition of provisions about dietary supplements. He wanted legislation that
would loosen the standards for dietary supplements. We ultimately agreed to a
compromise provision directing FDA to adopt a regulation that would decide the
procedure and standards for approving dietary supplements. And FDA issued a
regulation that said the procedures for health claims on dietary supplements
would be the same as for food product claims, and the standard is also going to
be the same. It wasn’t what Senator Hatch wanted. But our way forward was to
agree to this compromise. Senator Hatch may have thought that because David
Kessler had worked for the senator, Kessler would look on this favorably, but he
In the next Congress, I spent an enormous amount of time on dietary
supplement legislation as well as the Prescription Drug User Fee Act, President
Clinton’s health care reform initiative, and the tobacco hearings.
Mr. Pollak: You’ve described relationships between Democrat and Republican
representatives and their staff and how things were worked out. How does that
compare to today?
Mr. Schultz: From my perspective, the Hill unfortunately is an unpleasant place today. I
don’t want to say everything was perfect or everybody got along perfectly
during my tenure, but Republicans’ and Democrats’ interest in legislating was
the driving force. Also, we had an advantage because the Democrats had been
in power in the House for so long that everybody recognized their leadership and
that they were in charge of setting the agenda.
When I was there, there were a few members who were extreme. There
were members of our committee who were homophobic and opposed any kind
of AIDS legislation, but they were outliers. And the Republicans were willing to
negotiate over legislation that had provisions they thought would benefit them,
even if the legislation ended up making the Democrats look good because they
passed it. That is just not the case today.
An example of collaboration was what began as the Children’s Pesticide
Act to strengthen standards for pesticides. It was ultimately passed in 1996 as
the Food Quality Protection Act after the Republicans took over the House.
Congressman Waxman made a deal with Congressman Bliley because Waxman
wanted the legislation and the Republicans wanted to be able to claim credit for
legislating. Later there was a time when Congressmen Bliley and Waxman
reached an agreement on tobacco legislation, but Newt Gingrich by then was
Speaker of the House and would not approve it. Gingrich didn’t want to make
Henry Waxman and the Democrats look good. That was not consistent with his
Mr. Pollak: So, where will we pick up in the next session?
Mr. Schultz: I think the two pieces of legislation we should touch on are the Prescription
Drug User Fee Act and the Dietary Supplement Health and Education Act. And
then in 1993 to 1994, the Clinton health care plan and the tobacco hearings.
This is the seventh interview conducted on behalf of the Oral History Project of the District of
Columbia Circuit. This interview of William B. Schultz was conducted on Saturday, November
20, 2021, by Stephen J. Pollak in Washington, D.C.
Mr. Pollak: Good morning Bill Schultz. We’re in the period of the 102nd Congress, 1991-
92. I wonder if you’d set the stage by identifying who was President, the
majorities in Congress, and where you were working.
Mr. Schultz: I had been working for Congressman Waxman on the Hill for a year. I began
during the second half of the 101st Congress and George Bush was President.
This was two years into his one-term presidency. The Democrats controlled the
House, as they had for about 40 years, and they controlled the Senate as well.
I technically worked for the Energy and Commerce Committee, chaired
by Congressman John Dingell, a very powerful big figure. In reality, I worked
for Congressman Henry Waxman, the Chairman of the Subcommittee on Health
and the Environment. In those days, the subcommittee chairs had an enormous
amount of power and the ability to drive legislation. In the Senate, our
counterpart was Senator Kennedy, who chaired the Senate Health Committee.
Mr. Pollak: I see. And was there legislation introduced in that Congress on prescription drug
user fees?
Mr. Schultz: Yes. We introduced many bills, and we held hearings on drug prices and
various other matters including an FDA enforcement bill.
Mr. Pollak: Who’s the “we”?
Mr. Schultz: Well, I’m just thinking of Congressman Waxman, myself, and whomever we
were working with on the Democrats’ staff. But I’m basically talking about
things I was responsible for. The most significant piece of legislation enacted
was a Prescription Drug User Fee Act. This was designed to transfer money to
the FDA to fund the review of new drugs. The impetus for it was the AIDS
crisis. For many, many years, the Food and Drug Administration had been
criticized for being slow in approving drugs, and it was said in those days that
Great Britain and other countries in Europe got drugs approved more quickly
than we did. Critics blamed our bureaucracy for slowing it down. In fact, in the
late 1980s I served on the Scheurer-Gore Commission on the Federal Drug
Approval Process, which was a congressional commission that issued a report on
the so-called drug lag, namely delays in approving prescription drugs in the
United States.
Congressman Waxman and Senator Kennedy had tried to get additional
appropriations to FDA to hire more staff to do the work more quickly, but they
never succeeded. The idea was to adopt a law that would require drug
manufacturers to pay fees on new drug applications that would provide the FDA
with additional funds to support the drug approval process. Congressman
Waxman, Senator Kennedy, and other Democrats had been opposed to the idea
for many years because they objected to having the industry pay the agency that
regulated it and feared this could lead to industry capture of the agency.
Then, in the early 1980s the AIDS epidemic came along, and with it a
tremendous desire and pressure on the FDA to review and approve AIDS drugs.
The lack of resources was an impediment to drugs that could address this health
crisis. Ultimately Congressman Waxman came around to the idea. I was in
charge of the legislation and began negotiations with FDA and the drug industry
to try to reach agreement. The drug companies didn’t want to pay fees to offset
the federal debt, nor did they want the fees used to increase FDA’s enforcement
activities. They wanted an assurance that these fees would only be used to hire
additional personal and that the result would be quicker drug approvals.
Mr. Pollak: Could that be worked out?
Mr. Schultz: Well, that was the challenge. We absolutely did not want to set a deadline that
the FDA would have to meet. We never wanted the FDA to approve a drug
because of a deadline. We only wanted them to approve a drug because it met a
standard of safety and efficacy.
Mr. Pollak: But could you direct the money into additional staff for the FDA for the
approval process?
Mr. Schultz: We worked with the FDA. The agency needed to sign off on the goals. We
agreed to a five-year plan. The first year or two was devoted to hiring. The
agency told us not to expect any progress in the first year or two because it
needed time to hire additional staff and to set up the program. After the hiring
period, for each subsequent year there was a goal that a percentage of drugs had
to meet this new target. And, by year five, the agency’s goal was to reach a
decision on ninety percent of all drugs applications within ten months or a year.
Just for context, the agency was taking two and a half to three years to approve a
drug from the time the new drug application was filed.
Mr. Pollak: And what happened if it turned thumbs down? Did there have to be a new
application? Is that the way it worked?
Mr. Schultz: It depends. But thumbs down would meet the goal. In some cases, it would be a
matter of supplemental application. And in some cases it could be a new
application. But often if it’s thumbs down, it’s not that the basic clinical trial
failed, but that that the application was deficient in some aspect.
Mr. Pollak: Well, it sounds like a textbook occasion for development of legislation to satisfy
the various interests before it could get passed.
Mr. Schultz: It was a big success in that all the goals were met and by year five the FDA was
approving ninety percent of the drug applications within the goals. This was a
five-year experiment. And at the end of five years, if Congress wanted to renew
it, we’d have to enact new legislation.
Mr. Pollak: And what happened?
Mr. Schultz: Everyone saw it as a success, and it’s been renewed every five years since 1991.
With it came more and more money, so that today, user fees pay about seventy
percent of the drug budget at FDA. I think, when we started, it was maybe thirty
percent. And this has been a model for the FDA and for other agencies as a way
to get additional funding without appropriations and without raising taxes. At
FDA, it’s now used for medical devices, for food additives, for generic drugs,
tobacco, and I think the animal drugs. It’s used for almost all the application
programs at FDA.
Two potential negatives are first, with the drug industry paying for
seventy percent of the FDA’s budget, it really opens the agency up to charges of
industry capture — charges that this critical function is being funded by industry
and may compromise the FDA’s decision-making. In addition, because this has
to be negotiated every five years, the legislation is a vehicle for other kinds of
provisions, some of which have been positive and some of which have weakened
the FDA’s authority.
It has allowed industry to foster a close working relationship with the
FDA, which has clear plusses and minuses. As a result, the drug approval
process operates more efficiently in a fairer way for the industry and a better
way for patients in terms of the speed of drug approval. I am not aware of
examples in which standards have been compromised because of user fees, but
there certainly are examples where legislation had been enacted that has
weakened some of FDA’s authority.
I have to admit that when we worked on this legislation we probably
assumed the Democrats would always have control of the House, that
Congressman Waxman would always be chairman of the Subcommittee on
Health and the Environment, and that the Democrats in the House could block
any bad legislation. But if we assumed that we were wrong.
Mr. Pollak: Do you want to say a few words about how this all was coordinated, so that it
not only got through the House of Representatives, but the Senate as well?
Mr. Schultz: Yes, at that time the FDA’s staff person for Senator Kennedy was Mark
Childress, with whom I worked very closely on this and other legislation. I’m
sure we and the Senate held hearings. We worked very closely together, but in
this case the House led the drafting and the negotiation. By the time it was done,
there was such broad agreement with the drug industry, FDA, the Republican
Administration, the Democrats in the House, that I think the Senate was happy to
accept it and pass it as well.
Mr. Pollak: I see. Well. Do you want to turn to the change brought about by the election of
Mr. Schultz: In 1992, President George Bush lost the election to Bill Clinton, who would now
be the first Democratic President in 12 years. We saw this as a sea change and a
huge opportunity since the political appointees in the executive branch would
now be replaced and there would be opportunities for progressive legislation.
President Clinton announced that after he dealt with economic legislation his
number one priority would be national health insurance. This had been Senator
Kennedy’s life work and something that Congressman Dingell and Congressman
Waxman had also been very dedicated to.
Mr. Pollak: So did the change in administrations have an effect on the Hill and on your own
Mr. Schultz: Democrats still controlled the House and Senate so there wasn’t much change of
Hill staff. If the Bush Administration wanted to enact legislation, they had to
deal with the Democrats. They might have been closer with the Republicans on
the Hill, but the Democrats had all the power. They had all the committee
chairs. They called all the hearings. They decided what legislation was going to
move. We were very central to any legislation or oversight. When President
Clinton took office, now all of a sudden the White House was the one taking the
lead on legislation. And in some ways, I think congressional Democrats and
their staff became less important.
To give an example, on Clinton’s healthcare bill, the Clinton
Administration wanted to write that bill itself, and they ended up taking
something like ten months just to draft the legislation. By that time, we had lost
the momentum. And while there was a lot of involvement from staff on the Hill,
we were not driving that legislation or any other major legislation. In terms of
my work, I was interested in working in the Administration, at FDA.
Commissioner Dave Kessler had been appointed by George Bush, but he was a
very progressive Commissioner and very popular among the Democrats,
particularly on the Hill. President Clinton decided to retain him, which meant
any positions at the FDA, any Deputy Commissioner positions, Commissioner
positions, or the Chief Counsel were not open. I had only been in my job on the
Hill two years so in any event it was probably too early to leave.
Mr. Pollak: I see. So that brings us to the story of the Clinton healthcare plan, the
Healthcare Task Force, the Hill’s role in that activity, and your own role. And as
history records, the plan did not succeed. Describe the process, why it failed,
and the lessons learned.
Mr. Schultz: I should emphasize, I was on the sidelines. Our subcommittee was in the center
of the negotiations and we had experts on Medicare, Medicaid, and healthcare
financing, and they were very much a part of it. Peter Budetti, a former
committee staff member, was hired by the White House to do a major part of the
drafting. My involvement was on drug price issues and product liability.
President Clinton appointed his fellow Rhodes Scholar Ira Magaziner
and his wife Hillary Clinton to lead the task force. Clinton said he considered
Magaziner one of the brightest people he had known. Neither had any
background in healthcare. Ira Magaziner led the policy analysis and set up
working groups.
Mr. Pollak: Where did he come from? What got him the job?
Mr. Schultz: He came from Rhode Island. I think he had been in business and had done some
political work there. That’s all I remember about his background.
The Healthcare Task Force was set up and I think there were about 500
people on it. They were from all over the country and included Hill staff. I was
on the drug working group focused on drug prices, and on a second group
focused on product liability. Each group was maybe six or eight people.
Meanwhile, nobody in the Clinton White House realized that this task force was
an advisory committee, subject to the Federal Advisory Committee Act that
requires certain transparency rules be followed when the government is getting
advice from outside groups.
They were of course, sued, and the work was tied up to some extent in
the litigation that the Administration eventually lost. I mention this as an
example of just how inexperienced the Clinton White House was in the ways of
Washington. After the small committees did their work, they presented their
work to Ira Magaziner and maybe a couple of other White House staffers, who
would ask questions. And these meetings were held at all hours of the day and
night. I went to one that was held at midnight on a Saturday night.
Ultimately, a bill was produced that was more than one thousand three
hundred pages long and by then a lot of the momentum had been lost. It was too
late, and the sponsors could not get the votes in the Senate. It just crashed and
burned, was a huge disappointment, and probably led to Clinton losing the
House and the Senate in the 1994 midterm elections. The Democrats lost eight
seats in the Senate and 54 in the House, giving the Republicans control of the
House for the first time in 46 years.
Going back to the healthcare legislation, while I was peripherally
involved, I was not organizing the hearings or negotiating the bill as was almost
the entire remainder of the Waxman staff. Instead, I worked on the tobacco
Mr. Pollak: Before you get to tobacco, what were the lessons learned from the healthcare
failure? And you might say a word on whether those lessons were applied
during the Obama years when you were involved with healthcare legislation, I
believe. It was turned around and was successful.
Mr. Schultz: There are two lessons that come to mind. First, the Clinton plan took on too
much. It would have replaced much of the healthcare system that existed,
including employer insurance, which is where most people not on Medicare or
Medicaid get their insurance and which was often largely paid for by the
employers. This was a massive change, and it opened the sponsors to attacks
aimed at people who were basically satisfied with their health insurance.
National health insurance was needed for people who didn’t have insurance, but
those who had coverage were, for the most part, satisfied. The drug companies,
the hospitals, the insurance companies, the doctors, and other powerful interests
exploited this and made people very uncomfortable with the idea that their
health insurance would change.
The Obama plan on the other hand was modeled after legislation
enacted in Massachusetts when Mitt Romney was governor. It focused on a very
narrow slice of the market, those people who couldn’t get health insurance or
couldn’t get good health insurance. It barely touched Medicare or employer
insurance. It was for individuals and small businesses who had to pay more
because they couldn’t take advantage of a plan that covered a large number of
individuals. It was also for people with pre-existing conditions who couldn’t buy
health insurance, or, if they could get it, couldn’t afford it. It changed a much
narrower part of the market.
The other lesson was that trying to control this from the White House
was not a good idea. The White House process was too slow, and the Clintons
didn’t have buy-in from the Hill once the legislation was drafted. The Obama
Administration did exactly the opposite. They basically turned it over to the
Hill, so much so that some of my former congressional colleagues thought the
Administration had gone too far the other way. But in the end, it was successful.
We can get to that later.
Mr. Pollak: So, you continued on Waxman’s staff and you might try to identify the timing.
You began to be concerned with tobacco.
Mr. Schultz: My colleague Phil Barnett and I were fortunate to be occupied with tobacco.
Everyone else on our staff was wringing their hands over what was going on
with healthcare. The tobacco initiative was started by David Kessler, the
Commissioner of the FDA. At some point during his tenure, he began an
investigation of the tobacco industry.
I had known David since 1980. He went to Harvard Medical School and
Chicago Law School and then did his residency at Johns Hopkins. As I
mentioned, during his residency he worked for Senator Hatch on food safety
legislation. He then became a hospital administrator, but stayed very involved in
FDA issues. He wrote articles for medical journals during the 1980s. He would
sometimes send me a draft, and I’d send him comments back. So, we had a bit
of a professional relationship.
In 1989, when FDA Commissioner Frank Young was ousted, David
Kessler persuaded Senator Hatch to advocate for him as FDA Commissioner.
He got the job, but not before a law was passed making the FDA Commissioner
a presidential appointee requiring Senate confirmation. It was Senator Al Gore’s
idea and he persuaded Henry Waxman to go along with it.
Kessler was nominated in November of 1990. Normally you couldn’t
start a Senate-confirmed position without a hearing, markup, and vote in the
Senate, but there wasn’t time. Senator Hatch convinced Senator Kennedy to
waive the hearing, and they confirmed him in a perfunctory manner so he could
start immediately.
At some point Commissioner Kessler started investigating the tobacco
industry to determine whether there was support for declaring that nicotine made
tobacco a drug and cigarettes a combination drug/medical device. If so, tobacco
could be regulated under the Federal Food, Drug, and Cosmetic Act.
Up to that point, tobacco was largely unregulated. Cigarette advertising
was minimally regulated by the Federal Trade Commission, but the product
itself was exempt from regulation. And anybody in the public health field knew
that the greatest opportunity to save lives was to regulate tobacco. I used to say
that tobacco killed more people than everything else I worked on and all the
public health issues I didn’t work on put together. At that time about 50,000
people a year were killed on highways. Over 58,000 Americans were killed in
the Vietnam War. Tobacco was killing 500,000 people in the United States.
Almost as many people a year die from tobacco as have died in the U.S. from
the Coronavirus, every year.
Kessler led the investigation and he got to the point where he wanted to
move forward and realized he couldn’t do this alone. He sent a letter to
Congress, laying out the case and asking for guidance. We knew at that point
we needed to start tobacco hearings.
Mr. Pollak: That was a real moment in time. Well, so what did you do? Who were the
Mr. Schultz: We worked very closely with David Kessler and his colleagues at FDA. On the
Hill, the staff was Phil Barnett and me. Phil Schiliro, Waxman’s administrative
assistant, also made a major contribution.
Mr. Pollak: Did it move forward in the House and not in the Senate?
Mr. Schultz: Yes, we jumped ahead and took the lead. I think we held almost all the hearings.
One interesting thing about a legislative committee, which is what Congressman
Waxman chaired, is that it can also hold oversight hearings on subjects within its
jurisdiction. We probably held five or six hearings. The first one was with Dr.
Kessler. He laid out the case. He had done extensive patent research and had a
comprehensive argument not only that nicotine was addictive but also that the
tobacco companies were manipulating nicotine to make it more addictive.
Sometime early during this series of hearings, CBS’s 60 Minutes did a
story about tobacco giant Philip Morris in which they alleged that Philip Morris
was spiking tobacco with added nicotine to make it more addictive. The 60
Minutes episode led to a lawsuit that Philip-Morris brought against CBS. All of
this had the effect of making tobacco a huge national issue.
In those days, many Americans got the news through network evening
broadcasts. During our investigation, the Waxman hearings were often the top
story on the evening news. The hearings were based initially on work the FDA
did, but we also demanded documents from the tobacco companies under threat
of a subpoena.
As I mentioned, Phil Barnett and I shared an office, and it was filled
with boxes of documents that we were going through as quickly as we could. I
remember many late nights when we would be in our office going through
documents, preparing for a hearing, writing questions, knowing that that hearing
would be at the top of the evening news the next day.
During the most notable hearing we asked the CEOs or heads of the
major tobacco companies to testify. And they had never done this before. They
had always declined any invitation to testify. At that point, the executives had
enormous clout on Capitol Hill. It had never been possible to pass any
meaningful legislation because they had so much sway over members of
Congress. But in this case we were prepared for them not to show. We were
going to hold the hearing anyway and have Congressman Waxman pose
questions to empty chairs with their name tags.
The ranking Republican on the subcommittee, Tom Bliley, was from
Virginia where Philip Morris was located. Bliley told the CEOs that if they
didn’t show up, he wasn’t going to support them. As a result, they all came.
Because this was an oversight hearing, we worked with the Commerce
Committee’s oversight subcommittee staff to find out the right procedures for an
oversight hearing. And we did something that we had never done before: We
had the CEOs sworn in before they started testifying. There is a very famous
picture where they are all raising their right hands and swearing to tell the truth.
They then later testified that nicotine is not addictive.
I’m sure that the hearing was on the evening news. Journalist Ted
Koppel, who had a very popular late night TV news show, covered the hearing
and devoted an entire program to it. The other thing we did that we had never
done before is coordinate the questions among the members. Usually in a
congressional hearing, each member gets five minutes to ask questions. This is
why hearings are often not very effective at soliciting information. The hearings
would start with the chair, who would get five minutes, and then the ranking
Republican would get five minutes. It would go back and forth, alternating from
Democrat to Republican.
For this hearing, we wrote a set of questions and gave them to the top
three or four Democrats on the subcommittee. It was as though there was a
script passed down from member to member to give it as much continuity as we
possibly could. The most famous part of the hearing came when the question
was asked that everybody knew would be asked: “Is nicotine addictive?” And
each of the CEOs testified that in his opinion nicotine was not addictive.
Ultimately, another member of Congress referred their testimony to the
Department of Justice for a criminal investigation of perjury. In the end Justice
didn’t prosecute. But this was all very high drama.
Prior to the hearing we had been talking to a former Philip Morris
researcher named Dr. Victor DeNoble. It had been his job to research the
addictiveness of nicotine. His team had done animal studies and other work that
was far more sophisticated than any other scientist had. And when he was ready
to publish his articles, Philip Morris wouldn’t allowed it. Somehow, FDA found
Dr. DeNoble had left Philip Morris and was willing to testify, but he
signed a non-disclosure agreement with Philip Morris. So in our hearing with
the CEOs, Mike Synar, who was one of our star committee members, questioned
the CEO of Philip Morris with cameras rolling. Mike said, “Will you commit
not to prosecute Dr. DeNoble if he comes before our committee and testifies?”
And the head of Philip Morris had no choice but to agree to that. I think he was
completely surprised and unprepared. That opened-up a whole other line of
inquiry that we wouldn’t have had.
We then held an entire hearing devoted to Dr. DeNoble’s research. We
held a hearing devoted to low-tar, low-nicotine cigarettes. But with the
documents we had and the work that the FDA had done, and the exceptional
press attention, we were able to hold some very exciting hearings. The CEO
hearing is part of famous congressional lore.
Mr. Pollak: CEOs of the tobacco companies?
Mr. Schultz: Yes. I’m now seeking to force the oil companies to take steps to reduce climate
change. Recently there was a hearing before the House Committee on Oversight
and Reform in which the Committee called all the oil company CEOs. The
congressional members at that hearing kept referring to the tobacco hearings and
saying, what you’ve done is just like what the tobacco companies did.
Our investigation, Kessler’s investigation, other investigations, and
ultimately lawsuits revealed that for forty or fifty years the tobacco industry,
through its trade association, had a plan to confuse the debate over the safety of
cigarettes and whether nicotine was addictive. Through scientific papers and
various strategies, their whole effort was to create doubt so that they could
continue to sell their products knowing full well that nicotine was addictive and
tobacco was deadly.
Mr. Pollak: And what was your responsibility for the hearings? Did you set them up?
Mr. Schultz: Phil Barnett and I were the committee staffers. We decided what the subject was
going to be; we decided who was going to testify; we wrote the opening
statement for Congressman Waxman; we wrote the questions that he and other
Democrats were going to ask at the hearing; and we worked very closely with
David Kessler and his colleagues at FDA to get ideas and information.
Mr. Pollak: And did you have to subpoena the witnesses?
Mr. Schultz: We didn’t have subpoena authority. We would have had to get authority from
the full committee to do that, but we didn’t subpoena any witnesses. As I said,
the CEOs were forced by Congressman Bliley to testify. Many of the other
witnesses were friendly witnesses. They were happy to testify.
Mr. Pollak: And what was Congressman Bliley’s position?
Mr. Schultz: He was the ranking Republican on our subcommittee, so he was the lead
Republican. We didn’t know what his motivation was but in later years when I
was at FDA working on tobacco, I worked with his staff on various issues. I
learned that Congressman Bliley spoke about how his wife had gotten sick from
tobacco and I think he had real health concerns about tobacco. Even though he
supported the industry, I think he really understood the dangers.
Mr. Pollak: How did this end?
Mr. Schultz: In the 1994 midterm elections the Democrats lost the House. Congressman
Waxman lost his chairmanship as did Congressman Dingell. And Congressman
Bliley became the Chair and immediately announced that he was closing down
the tobacco investigation. That was the end of the tobacco investigation.
I’ll tell you an inside Washington story that occurs to me. The powerful
Congressman John Dingell was chair of both the Energy and Commerce
Committee and the Oversight Subcommittee. The Energy and Commerce
Committee Chief of Staff, Michael Kitzmiller, left his job to set up his own shop
and was looking for work. After our hearings started, the tobacco industry
signed a contract with him to represent them in any oversight investigation
before the committee. The fee was $500,000 a year for five years, an enormous
sum of money in 1994. The tobacco companies may have thought they were
going to need to stop Congressman Waxman, and in particular stop any
subpoenas that would have to be authorized by Congressman Dingell. They
probably also hired him to advise them on members and who might be
sympathetic and who might not, and all the things that Washington lobbyists do.
I heard that after the 1994 election when the hearings were closed down, the
tobacco companies went to Kitzmiller and said, “Well now, there’s no more
work to do so we want to terminate our contract.” And he said, “Oh no, it’s a
five-year contract, I’m at your service for five years at five hundred thousand
dollars a year.”
Mr. Pollak: And you’ve already talked about the legacy of the hearings. It showed how you
could bring the CEOs to the Congress and obtain their testimony.
Mr. Schultz: I think today swearing witnesses in is a much more common practice, even
before a legislative committee. But those hearings have become famous, in part
because of the testimony that nicotine is not addictive. Everybody today
understands it’s not true.
Mr. Pollak: And why did responsible men so testify?
Mr. Schultz: Well, a CEO of a tobacco company in those days had no choice, particularly
because of the product liability complications of admitting it was addictive. This
is probably why they didn’t want to testify in the first place.
At that point the tobacco industry had been sued many times but had
never lost. And a principal argument was that smoking is a matter of free
choice. If a person got sick from smoking or got cancer or died, well, that was
their choice and it’s their fault. But once you understand two things, that
nicotine is addictive and that people start smoking when they are children, the
free choice argument falls apart.
Mr. Pollak: And have there been successful lawsuits between then and now?
Mr. Schultz: Yes. I can’t recount them all, but there have been successful lawsuits brought by
smokers and their families. And of course, the state attorneys general all
brought lawsuits against the tobacco companies that were successful and led to a
very large settlement. We could talk about that later.
Mr. Pollak: So, in the summer of ‘94, you made a job change.
Mr. Schultz: Right and I had always been very fortunate in terms of job changes. And in this
case, there were two jobs at FDA that I had been interested in. One was Chief
Counsel. That seemed like the most natural job for me.
Mr. Schultz: But the General Counsel at HHS, Harriet Rabb, whom the FDA Chief Counsel
worked for, had made a decision not to fill that job with a political appointee.
So that job was not open to me. The other job was FDA Deputy Commissioner
of Policy, a position that David Kessler had created. That person was in charge
of all FDA policy initiatives, including regulations and initiatives on the Hill.
The person in that job worked very closely with the Commissioner.
There was a staff of about ten very talented people, mostly lawyers, and
a much larger staff that processed regulations. Mike Taylor had filled that
position in the Bush Administration and at the beginning of the Clinton
Administration, but he left to be head of the Food Safety and Inspection Service
at the U.S. Department of Agriculture. So that job was vacant. David Kessler
asked me if I was interested in that job and I said I was. I accepted the job during
the summer before the election and I was scheduled to start at the end of the
congressional legislative session. I had no idea that I would’ve lost my job on
the Hill because of the election. After the election in November 1994, we were
all shocked that the Democrats lost. I was the only one on the staff with a job
because after the election there were no committee staff allocated to the top
Democrat on the subcommittee. That meant the only staff positions for
Congressman Waxman were on his personal staff. Phil Barnett and the staff
director Karen Nelson joined Phil Schiliro on personal staff and everyone else
found new jobs.
Mr. Pollak: Was your position as Deputy Commissioner of the FDA a Senate-confirmed
Mr. Schultz: No.
Mr. Pollak: So, President Clinton named you? or David Kessler?
Mr. Schultz: Well, David Kessler selected me, but I had to be approved by the Department of
Health and Human Services and the White House since it was a political
appointment. And it’s a cumbersome process. It’s quite onerous, and you have
to have an FBI check, which takes months.
Mr. Pollak: Months while you continued on staff of the committee?
Mr. Schultz: Yes, and they wanted me to stay until the end of that session because we had a
lot of legislative work going on. We didn’t know we weren’t going to be in the
The major piece of legislation I remember that was enacted was the
Dietary Supplement Health and Education Act. Unlike other legislation I
worked on, this was a step backwards in terms of the authority of the Food and
Drug Administration. But David Kessler got more aggressive in regulating
dietary supplements.
If you think about it, the FDA regulates drugs and it regulates food, but
dietary supplements fell somewhere in the middle. For example, Vitamin C or
calcium sold as just Vitamin C or calcium was regulated more like a food.
Which means very light regulation with no pre-market approval. On the other
hand, if you sell Vitamin C to cure the common cold, it’s now being sold to treat
a disease and it’s a drug. And that’s prohibited unless you get approval from the
FDA, which requires clinical studies to back up your claims.
The FDA had a very inconsistent history about regulating dietary
supplements, and historically when FDA tried, it had been slapped down by
Congress. But David Kessler had been fairly aggressive, and the dietary
supplement industry started fighting back. They had a lot of allies on Capitol
Hill and a lot of allies in the public. They decided to advocate for legislation to
take away FDA’s authority. The industry got members of the public riled up,
and the Hill got more mail that year on this topic than any other we were
considering. The supplement industry had Democrats and Republicans
supporting them. Senator Hatch was a big supporter. Iowa Senator Tom Harkin,
a Democrat on the Senate Health Committee, was a big supporter. Congressman
Bill Richardson, a Democrat from New Mexico who later became Secretary of
Energy, was a big supporter of dietary supplements. Maryland Senator Barbara
Mikulski, also a Democrat, was supportive.
There were hearings before Senator Kennedy’s committee. This really
horrible, strongly supported bill passed in the Senate by voice vote. There was
very little resistance, and very little appetite for pushing back. The only one
willing to fight was Congressman Waxman. I was his staffer, and we thought
we had the ability to keep the bill from moving through the House because it
could not move through the House unless it went through our subcommittee.
Congressman Waxman could decide not to move the bill and the bill wouldn’t
go anywhere. There was only one way around that and it was almost never used.
With a discharge petition, a majority of the members of the House could petition
to overrule the subcommittee chair and discharge the bill out of the
subcommittee for a full House vote.
My recollection is that a majority or near majority of the House
cosponsored the bill. We were clearly being threatened with the discharge
petition and we knew that it if it didn’t happen that year it would happen the
next. Having the bill discharged would have put Congressman Waxman in a
very weak position. I was charged with getting the best legislation we could,
and we started a long negotiation with the industry, FDA, and congressional
Eventually the leaders in the House and Senate met to hash out the final
issues. We had negotiated everything we could but we could not agree on some
items. The most important one was that the industry wanted the ability to sell
dietary supplements without FDA approval to make something called
structure/function claims. Earlier I recounted how structure/function claims were
allowed in the bill when Congressman Waxman agreed that it would be
sufficient if there was a disclaimer that the claims were not approved by FDA.
That was a major setback, but in the end we had improved the bill quite a bit.
There were certainly no celebrations in the Waxman office when it passed.
Mr. Pollak: What is the reference you make in your outline to a New York Times article and
Mel Gibson video?
Mr. Schultz: This is an example of what it was like dealing with the well-funded proponents
of dietary supplement legislation and their allies. There was a very effective
campaign that generated an enormous amount of mail, and this was before the
days of e-mail. The companies and their lobbyists managed to get a front-page
story in The New York Times attacking FDA, attacking its regulation of dietary
supplements, and touting the merits of dietary supplements. The article was
riddled with inaccuracies, which I identified. Because my wife is a reporter, I
knew how to handle this. I called the reporter but more important I called the
editor and said you have to run a correction. The article was filled with
inaccuracies and The Times did something I had never seen before. Instead of
running a simple correction, the usual practice, The New York Times ran a
second article correcting the first. It wasn’t on the front page, but the paper
recognized that their reporter had been taken in by the untruthful propaganda of
the dietary supplement industry.
Another example of their aggressive tactics was a video combining two
issues we were working on. In addition to dietary supplements, I was also
working on a bill to give FDA more enforcement authority. Because the
enforcement statute was so old, it hadn’t given the agency subpoena authority or,
for example, the authority to seize adulterated foods. As a result, FDA had to
rely on the states, which had much more authority.
So, we were working on both an enforcement bill and the dietary
supplement bill. The star of the video was Mel Gibson. It begins with a picture
of a big white house on a hill. When the viewer enters the house with the
camera, Mel Gibson is in his kitchen. The counters are completely clean and
white and there are bright white lights. All of a sudden several men carrying
guns with FDA written on their vests break through the door and enter the house.
Mel Gibson turns around and says, “Guys, it’s only vitamins,” and the camera
shows vitamin bottles on the kitchen counter. The message was that FDA is
about to take away your vitamins. That video was passed around and was very,
very popular. That was what we were up against. Our side didn’t have those
kinds of resources.
Mr. Pollak: And you reference in your outline a check scandal, what’s that?
Mr. Schultz: This grew out of the policies of the Congressional Federal Credit Union, where
staff and members could have checking accounts and there were no fees charged
on those accounts. It turned out if you were a member of Congress you could
overdraw on that checking account and the checks wouldn’t bounce. They
would be covered, and it would be expected that you would ultimately make the
deposit and make it all even. As far as I know that is what happened frequently
to members, and it allowed members not to pay attention to their balances
because there was no consequence to overdrawing. Somehow this was
discovered and published. Some members had negative balances 400 times;
Henry Waxman was one of them. He handled it very well. He publicly
admitted what he had done. He didn’t try to hide it, and the story went away.
This incident was used effectively by Newt Gingrich leading the
Republicans to attack the Democrats and people’s faith in Congress. Combined
with what had happened to the healthcare bill, the check scandal was a major
factor in the Democrats losing the House. In fact, Tom Foley, the Speaker of the
House, lost his seat in Congress, the only Speaker ever to lose his seat while he
was Speaker. So the fall of 1994 was a tough time for Democratic members of
the House of Representatives. After the disastrous midterm election, Newt
Gingrich became Speaker of the House and there was a whole different
atmosphere with fundamental attacks on basic structures, on the Food and Drug
Administration, and on the federal government.
Mr. Pollak: You left the Hill with some hard knocks.
Mr. Schultz: Yes, I didn’t have bad feelings about it, but it was a real learning experience. I
felt we accomplished a lot in terms of strengthening the FDA’s ability to protect
the public health from unsafe drugs and foods.
Mr. Pollak: Is there more to say about David Kessler, a figure who has been a big player
from that era to the present?
Mr. Schultz: I worked with David when I was a congressional staffer and then I worked
closely with him when he was FDA Commissioner. He is an enormous talent.
He is obviously very bright, but a lot of people are very bright. He was well
educated, with a medical degree and a law degree. He instinctively knew how to
accomplish things in government, something that very few people in these
positions understand. And the first thing he understood was how to use the press
to protect himself.
He became a very popular figure with the press. He was on 60 Minutes,
he was quoted frequently, and he cultivated excellent relationships with
reporters. He understood, for example, that if he ever gave a speech, he had to
make news. He never wanted to go even to the Food and Drug Law Institute and
just make a speech. He always had to have something new and always had to
make news.
His popularity meant it was very hard for the President to fire him
because that was going to be bad politics. When Kessler was finalizing the
Nutrition Labeling and Education Act regulations, there was significant
disagreement with the White House staff. But my understanding is that
ultimately President Bush did not overrule him because he did not want to have
to deal with the debacle of David Kessler resigning. I’ll get to it, but we had a
similar situation with tobacco.
The other thing David understood was how to redesign the FDA
leadership to make it more effective. When he began as Commissioner, I think
there was a Commissioner and a career Deputy Commissioner. He immediately
created a structure so that he had the Deputy Commissioner for Policy, a Deputy
Commissioner for Public Affairs, and a Deputy Commissioner for
Administration who handled the budget. He made all these appointments and he
worked very, very closely with the head of legislative affairs and press affairs.
He was very generous to staff, very respectful, and very focused.
For example, when he was working on tobacco, he would spend his time
reading patents and reading articles. He was able to let go of all his other
responsibilities at FDA. It infuriated a lot of the FDA center directors, but it
allowed him to accomplish big things.
Mr. Pollak: When did you go on duty as a Deputy Commissioner?
Mr. Schultz: My plan had been to stay through the election and then maybe take some time
off and begin in January 1995. But David had other ideas. In the fall of 1994,
David and FDA were fully engaged in devising tobacco regulation. It was a
huge project, divided into two separate efforts. One was a legal document
explaining that FDA had jurisdiction over tobacco, and the second was the actual
regulation. Before FDA could do anything, Kessler had to convince everybody
in the executive branch that the agency had the legal authority, so the
jurisdictional document was critical.
The jurisdiction over drugs depends on intent. Let me explain. The
water in this bottle obviously isn’t a drug. But if I decide to sell it to cure cancer
and I advertise it that way, my intent is that this water can actually be used to
cure cancer and it’s now a drug. It can be regulated by FDA.
Similarly, tobacco by itself might not be a drug no matter how bad it is
for anybody or how addictive it is. But if FDA could show that the companies
intended it to be used as a drug because they intended it to be addictive, now all
of sudden tobacco is a drug. For most drugs that FDA regulates, intent is fairly
easy to establish. FDA officials can use the label and the advertising to show
that the purpose is to treat or prevent a disease, which establishes intent.
FDA hadn’t established that intent for tobacco, and Kessler’s
investigation had been geared at demonstrating intent. He and his colleagues
found industry documents that showed tobacco companies marketed the product
to kids and fully understood that getting children addicted would lead to greater
sales in the future. The fact that they understood the addiction and understood
its consequences went a long way to proving intent. We were also helped by the
fact that nicotine was sold by FDA as a tobacco cessation treatment, so nicotine
had long been recognized as a drug. It clearly had drug-like effects, mainly that
it was addictive.
This was a very, very tricky area. David asked me if I would spend the
fall before I took my job as Deputy Commissioner writing the jurisdictional
statement. The idea was that I would draft it with Ann Witt. Ann had been at
the Office of Chief Counsel for years, but then she had been detailed to work on
the tobacco team with the Commissioner. She is an incredibly talented, bright,
and creative lawyer. David thought if I went into the office I was supposed to
occupy, there would be no way I could work on writing a document. One thing I
learned as Deputy Commissioner was that I didn’t have time to write testimony
or speeches. The Deputy Commissioner is constantly in demand for meetings in
the agency, at HHS, and the White House, and to testify on the Hill.
David found an office several floors down from the Commissioner’s
office and his idea was that Ann and I would work there and wouldn’t tell
anybody. Of course, people found out, but the two of us stayed in this office
writing the jurisdictional statement.
Mr. Pollak: For whom to read?
Mr. Schultz: It was reviewed by lawyers at FDA, HHS, and the White House, and by Walter
Dellinger, head of the Office of Legal Counsel, who advised the White House on
legal issues.
Interestingly, David took the position that while the regulation formally
had to be reviewed and cleared by HHS and the White House, the decision to
declare jurisdiction was his. As the FDA Commissioner he could make that
decision. He understood he had to get other people on board, but he always held
that out as his prerogative. FDA jurisdiction was key to getting White House
approval for tobacco regulation. He was so intent on it that ultimately when we
published the proposed legislation in the Federal Register, he insisted the
jurisdictional statement be a separate document. One document that went
through government review, and one document signed by the Commissioner.
Mr. Pollak: That was the key job for you.
Mr. Schultz: Yes. It’s the one time I got to do what I call real work. When you’re in these
high-level positions, you may accomplish a lot but it’s a struggle to find time to
read cases and write documents. Of course, the document went through a lot of
changes after we did our work. We wrote the first draft that was the basis for it.
Mr. Pollak: What it had turned on was the timing. When did you spend time working with
Ann Witt? When did you publish the jurisdictional statement in the Federal
Mr. Schultz: I’ll give an overview of the sequence of events. At that time the proposed
regulation was also being developed. These two things are being done
simultaneously in the fall of 1994 and until August 1995. In August 1995 the
jurisdictional statement16 and the proposed rule17 were published simultaneously
in the Federal Register.
Mr. Pollak: They were published for comment?
Mr. Schultz: We didn’t ask for comment on the jurisdictional statement. We just declared
jurisdiction, but the proposed rule was published for comment.
Mr. Pollak: You want to continue this story?
Mr. Schultz: Sure. There was a lot to do between the initial work and the actual publication
of the proposed rule. The jurisdictional statement went on its track, work
continued to be done on it, and I think documents continued to be collected.
Meanwhile, the huge project of putting together this proposed rule went on.
David Kessler had detailed people from all over the agency to work on it.
The real key was the focus on children. He was convinced that the only
way he could get this through the White House and the Department of Health
and Human Services was the focus on children. The whole idea of the rule was
to protect children from tobacco. The only way to do that is to find a way to
regulate advertising and sales. This included, for example, limited vending
machines to bars. No more vending machines in schools or bowling alleys.
There would be a real limit on vending machines. The regulation included limits
16 Analysis Regarding the Food and Drug Administration’s Jurisdiction Over Nicotine-Containing Cigarettes and
Smokeless Tobacco Products, 60 Fed. Reg. 41453 (Aug. 11, 1995).
17 Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco Products to Protect
Children and Adolescents, 60 Fed. Reg. 41314 (proposed Aug. 11, 1995).
on free samples, cigarettes. It included a national rule that you had to be 18
years old to buy tobacco.
This is the eighth in a series of interviews of William B. Schultz conducted by Stephen J. Pollak
on behalf of the Oral History Project of the District of Columbia Circuit. This interview was
conducted on Tuesday, December 21, 2021, in Washington, D.C.
Mr. Pollak: We’re here again in the Pollak kitchen picking up on interview eight of your
oral history. And the topic on the table when we concluded on November 20
was your service as Deputy Commissioner of the FDA and particularly, the saga
of developing and sustaining a proposed rule limiting use of tobacco. So why
don’t you pick up there. I think you were just beginning to talk about
assembling the developments of the proposal.
Mr. Schultz: Thanks, Steve, it’s good to be here. As I’ve discussed before, everyone in public
health knows if you can do something to cut tobacco use, the public health
impact would be huge. Even if you could reduce tobacco use by 10%, you would
save 50,000 lives. That’s more people than die on the highways in a year, more
than people killed by guns.
FDA had never regulated tobacco or thought it was in its jurisdiction. In
the late 1970s, John Banzhaf, a professor at George Washington University Law
School, filed a petition urging FDA to regulate tobacco. It was during the Carter
Administration, and Don Kennedy, the Commissioner, turned them down. It
went to the D.C. Circuit and the D.C. Circuit held that FDA acted appropriately.
I don’t think the court directly addressed the jurisdictional issue, but it said that
the FDA did not have to get involved.
When David Kessler came to FDA as Commissioner in 1990, very early
a few staff members there approached him and said we think you should
consider regulating tobacco. The theory was that cigarettes contain nicotine and
nicotine is a drug. In fact, FDA regulated nicotine as a drug for nicotine
cessation products to help people stop smoking. And nicotine clearly has druglike
effects. It is addictive and it creates a tranquilizing effect, for example. As
he’s recounted this, he told them, “Give me some time to get settled in, and then
come back to me and we’ll talk about it.”
By the time I got to FDA in 1994, this project was underway.
Mr. Pollak: This project being development of a proposed rule?
Mr. Schultz: Yes. Initially Kessler did an investigation. He had inspected manufacturing
plants, and agents tried to gather evidence that they would use to show that the
nicotine in tobacco products is a drug. The key question to classifying tobacco
products as a drug was whether FDA could show intended use. The goal of the
investigation was to establish that the tobacco company executives had the
requisite intent to qualify the nicotine as a drug. And there was legal support for
the proposition that intent didn’t mean they advertised it or put the intended use
on their label, but only that they knew this effect and desired it. And lots of
documents were collected, including all the plans to get kids to smoke, scientific
studies of addiction, and so on.
The second thing that they discovered is that almost all tobacco use
begins when kids are under 18. If a child gets to 19 years old, it’s very unlikely
that he or she will begin smoking.
And the third point is based on data from the Centers for Disease Control
and Prevention, that about 3,000 kids start smoking every day and 1,000 will die
early as a result.
So David Kessler and the staff started developing a proposed rule, and
there were two aspects. One was to limit advertising and the second was to limit
access. Both were geared towards reducing tobacco use among children. The
theory was that if you could reduce the initiation, you could have a big impact
on how many people smoked and on how many died.
Since there were millions of people who were addicted, there was never
any idea that you could eliminate nicotine or eliminate cigarettes, but the goal
was to try to reduce the number of kids who started smoking. Advertising had
been banned on TV by the Federal Trade Commission in the early 1960s, but
there were frequent advertisements in magazines, in stores, at race car tracks,
and in trinkets that the tobacco companies dispensed, including t-shirts and that
sort of thing. The rule would have significantly restricted advertising. For
example, in magazines, advertising was limited to those that were almost
exclusively read by adults.
The second aspect limited access to tobacco products by kids. This
included a federal rule that you had to be eighteen to buy tobacco or a tobacco
product. At that time, vending machines could be found anywhere, including in
schools, and they were to be prohibited except in adult facilities such as bars.
The proposed rule prohibited free samples, which was one way that kids first got
exposed to tobacco.
Mr. Pollak: And Bill, would it be appropriate at this juncture to indicate when in this process
of developing this rule you came to be a part of it?
Mr. Schultz: When I arrived, a lot of the investigation had been done. I think I’ve described
the hearings, the Waxman hearings, where we worked very closely with FDA,
particularly with Commissioner Kessler. And some of the preliminary thinking
had been done about the proposed rule. But the rule hadn’t been written. Most
of the decisions hadn’t been made. And we hadn’t figured out how to get it
cleared through the Administration, which included the Department of Health
and Human Services and the White House.
Initially our focus was on the Department because we needed the
Department and Secretary Shalala with us in order to have a chance of getting it
cleared at the White House. The Department set up briefings, which was very
unusual. In fact, I’ve never seen or heard of anything like it. The briefings were
scheduled for the evening with the top-level officials in the Department, other
than the Secretary and the Deputy Secretary. They included Chief of Staff Kevin
Thurm; General Counsel Harriet Rabb; Jerry Kleppner, the head of legislative
affairs; Claudia Cooley, the executive secretary; and several others.
After I got there, I led this effort for FDA. We would travel to the
Department and brief them on what we were considering including in the rule.
We probably had six or seven of these briefings. And they were brutal because
the FDA officials thought about this only in terms of public health, and the HHS
officials were. thinking about the politics and how it would play publicly. They
were very practical, and we all learned a lot from these meetings. They had an
important impact on the content of the rule.
So as these meetings were going on, the drafting began, and there were
two tracks. One was a jurisdictional statement and the other was the proposed
rule. In the jurisdictional statement, FDA declared that it had the legal authority
to regulate tobacco. The statement used the documents FDA had gathered in its
investigation to show intent, namely that the tobacco companies knew about
nicotine’s addictive nature and intended to cause addiction when they marketed
cigarettes to children. David wanted to take the lead on that part of it because he
had been very involved in the investigation.
Mr. Pollak: David Kessler?
Mr. Schultz: Yes. And that was his passion. This is the document that Ann Witt and I
initially had drafted. I managed the rule, the regulation that established the rules
for tobacco advertising and access to cigarettes.
This division engendered the only significant disagreement that David
Kessler and I ever had that I remember. We disagreed on what kind of word
processing program to use for the documents. I wanted to use WordPerfect,
which in those days was the word processing program of lawyers, and it was
what I was familiar with. I think at that time it was the more popular program.
David wanted to use Word, which was the program of scientists in those days.
We couldn’t agree, and so we decided that the rule would be in WordPerfect and
the jurisdictional statement would be in Word.
There’s a sequel, just jumping ahead. When we got ready to publish all
this in the Federal Register, we sent these massive documents with hundreds of
footnotes each to the Federal Register. It turned out the Federal Register was
equipped to convert the WordPerfect document, namely the rule, into its
typesetting and its fonts for publication in the Federal Register, but it could not
handle the Word program with all its footnotes. It absolutely could not do it. So
the jurisdictional statement ended up being published by photocopying each
page, and that’s how it was published in the Federal Register. It was never
Mr. Pollak: [Laughter.]
Mr. Schultz: The proposed rule cleared while I was on vacation in Nantucket, but I flew back
for the announcement. I remember sitting in the Secretary’s office before the
announcement waiting for a notice that the documents had been delivered to the
Federal Register. In those days this was done by car rather than by email, and
there couldn’t be an announcement of the proposed rule until the Federal
Register had the document in hand. We were sitting in the Secretary’s office
waiting, and somebody called my staff at FDA, who were responsible for this.
They were having a problem printing the documents. The documents were huge
and apparently the staff had too many windows open on the computer. As a
result, there was probably a good hour delay before they got to the Federal
Register. But ultimately, President Clinton made the announcement, and
devoted his regular Saturday morning radio address to the tobacco regulation.18
It was a great event.
Mr. Pollak: So, would it be fruitful for your history to identify the key players behind
yourself and Kessler?
Mr. Schultz: If I can remember them. At FDA, the key players were Mitch Zeller, who led
the investigation and ultimately, after Kessler left, was put in charge of the
program. The program was closed down after the Supreme Court decision.19 In
2010 Congress enacted legislation setting up the tobacco program, and Mitch
came back to FDA to be the director of the agency’s tobacco center, a position
which he held until April 2022.
Second is Judy Wilkenfeld, who had been at the Federal Trade
Commission, where she played a key role in the FTC’s efforts to regulate
tobacco advertising. She was probably the world’s expert in tobacco advertising
in the United States, and David Kessler brought her over to FDA.
Sharon Natanblut was another who had come from an advertising agency
and she was very involved in the promotion issues.
18 Univ. Cal. Santa Barbara, The President’s Radio Address (Aug. 12, 1995),
19 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
On my staff, the Office of Policy, Bill Hubbard was my Deputy and
Catherine Lorraine, was a lawyer who had been in the Office of General
Counsel. Lisa Barclay was my assistant whom I brought from my time with
Congressman Waxman. I’m sure I am forgetting others, but those are the people
who come to mind in the Commissioner’s Office.
And then from the Office of Chief Counsel, I worked very closely with
Margaret Porter, who was Chief Counsel, because we needed her support in
order to do this. There were several lawyers from the Office of Chief Counsel
who were detailed to work on these two projects. There were many, many others
throughout FDA who played key roles.
And let me go to the Department for a minute. The key players there
other than Secretary Shalala were Kevin Thurm, the Chief of Staff and later
Deputy Secretary; Harriet Rabb, the General Counsel; Claudia Cooley, who was
head of what was called “Exec. Sec.”; Jerry Klepner, who was head of
Legislation; Phil Lee who was Assistant Secretary of Health; and Bill Corr, who
was in the Office of the Assistant Secretary and later became Chief of Staff. It
was the top people, the leaders in the Department who were all involved in this.
Mr. Pollak: So, it was August 11, 1995, that the proposed rule was published?
Mr. Schultz: I should emphasize with respect to the proposed rule that while I was in charge
of the rule any significant policy decision was made by Commissioner Kessler,
and there were many, many decisions and many disagreements to be resolved.
Under the Administrative Procedure Act, in order to issue a regulation,
the agency must first issue the proposal, receive comments from the public, and
then issue a final rule that takes into account the comments, and for the
significant comments explain why they were rejected or accepted. Once the rule
becomes effective it has the force of law, just as though it were enacted by
And then, of course, there is the opportunity for judicial review where
the rule can be challenged on the ground that it is inconsistent with the statute or
inconsistent with the Constitution. It may also face a challenge for procedural
reasons, such as the agency didn’t give an adequate opportunity for comment or
didn’t explain why significant comments were rejected.
After we published the proposed rule, we prepared for the avalanche of
comments. It was said at the time we got more comments on that rule than any
rule that had ever been issued. We wanted to be on a very fast track and FDA
had a history of taking years and years to go from a proposed rule to a final rule.
It wasn’t unusual for FDA to take six or eight years to issue an important rule,
and we were aiming to issue the final rule one year after the proposed, which
was considered breakneck speed. It turned out that the vast majority of
comments were the same or could be categorized and dealt with pretty easily.
Mr. Pollak: The same in what way?
Mr. Schultz: Some of them were postcards saying, “Don’t take my cigarettes away.” They
were common comments, and they could be categorized. But there were maybe
30 substantial comments, a lot from the tobacco industry and some from public
interest groups, that raised the issues of authority and policy that we had to deal
with. So we put together teams to review the comments and identify the issues,
and then decisions had to be made.
One issue that we now had to struggle with was the legal authority,
arguments that that FDA didn’t have legal authority to regulate tobacco.
There were two aspects to this. Product may be regulated as a drug if it
is intended to have a therapeutic effect or if it is intended to affect the structure
or function of the body, such as a diet pill. Here the nicotine met the
structure/function test, so the issue was whether the companies intend this. But
there was a second problem: To be marketed drugs and medical devices have to
be safe and effective. And we could show that this was effective in terms of its
addictive effect, in terms of its effect on the brain, but it was an obvious
challenge to show it was safe. It was the most dangerous legal product on the
We developed a theory that safety should be viewed in a comparative
way and compared to the alternatives. Our argument was if this is medical, we
had the authority to ban it. That would be one option. It’s unsafe. But that
would create a black market and it wouldn’t really eliminate the product. And it
wouldn’t necessarily help people because cigarettes would be available to this
addicted population, who would use them with the same harmful effects. We
then argued that it was better from a public health point of view to regulate the
product under FDA authority than to ban it. That was the best argument we
could come up with.
The White House Counsel, Judge Abner Mikva, recognized that this
was going to be an issue for the White House, and so he did a very smart thing.
He set up a meeting for me to make these arguments to Walter Dellinger, the
Head of the Office of Legal Counsel. OLC acts as the lawyer for the President
outside the White House.
We sent Walter our analysis. He read it. I met with him. He asked me a
lot of questions, and then said, “I think it’s a sound argument.” He blessed our
argument. He said, “This will probably go to the Supreme Court and it is
probably going to be five to four, but I don’t know which way it’s going to come
out.” This turned out to be a very, very good prediction.
Mr. Pollak: And how did you prepare for the meeting with Walter Dellinger? Or did you
have it all in your head because you’ve worked on it so long?
Mr. Schultz: I don’t specifically remember how I prepared but I’m sure I spent a lot of time
preparing for it. Ultimately the Department and the White House cleared the
final rule. We didn’t know when it was going to be issued. After the proposed
rule was issued, I received many, many calls from reporters. And there was only
one question that they had and one thing they wanted to know: When are you
going to publish the final rule? And I said, well, I’m happy to answer that. I
know exactly when we’re going to publish it. The proposed rule was published
in the middle of my vacation in August 1995 and I’m sure the final rule will be
published in the middle of my vacation scheduled for August 1996. And it
turned out it was. It was accurate information.
The President decided that August was a slow month and before he went
on vacation, he was going to announce the final rule. And once again, I came
back to D.C. from my vacation and we prepared talking points for the President.
They were prepared at FDA, went through HHS, and they made changes and
cleared them. And then my job was to go to the White House and walk the
White House staff person through them. Her name was Jennifer O’Connor, and I
think she was assigned to the Domestic Policy Council. I took a disk with the
talking points – in those days we couldn’t email documents – to her office in the
Old Executive Office Building, and she put the disk in her computer, and it
couldn’t read it. That was because the Word or WordPerfect program that HHS
was using was a more recent version. It turned out that the only computer that
could read this disk was at the secretary’s desk outside the Office of the
President in the White House. We went over there and were able to print it out
and make edits.
As we were working, various people at the White House that I’d been
working with came by to say hello, and then the next thing I know, the door
from the Oval Office opens and out comes the President, former President
Jimmy Carter, and various other high-level officials. Jen introduces me to
President Clinton and tells him who I am. And he’s interested in talking about
the tobacco rule.
This was classic Bill Clinton form; he was knowledgeable about the
substance of it and interested in discussing it. But he also told me something we
didn’t know, which is that he and the White House had been trying to reach a
deal with members of Congress that would have meant we didn’t have to issue
the rule. He said that it had fallen apart, so the rule would go ahead.
The next day, there was a press conference, and the President announced
the rule. Previously it had been put on display by the Federal Register, and
within minutes we were sued by the tobacco companies.
My memory of the President’s press conference is that he took our
talking points and improved them. He went three steps past them in terms of
sophistication and knowledge. I thought it a remarkable performance.
And the coda is that this is the summer of 1996 and the election was
held in November. It was not a close election as everybody had thought it would
be a year before. The tobacco rule turned out to be a plus. Senator Dole made
some mistakes having to do with tobacco in the debates. And I think Clinton
actually won Kentucky in that election.
Mr. Pollak: Do you want to say anything about the process as government performance
measure? Something more general about the need and the incubation of a rule
and how government performs in that circumstance?
Mr. Schultz: I think this was a unique government experience in that it was an aggressive,
creative regulation that had the potential to have an enormous impact on public
health. But it had major pitfalls and political consequences and aspects to it that
are unlike any executive action or action taken by an agency that I can think of.
There were enormous challenges to getting it done so quickly, and getting it
through the government processes, which are generally designed to be cautious
and conservative.
I don’t know of anyone who could have done this other than David
Kessler. Many, many people at three levels of government, FDA, HHS, and the
White House, dedicated a portion of their life to it, were enormously skillful, and
really believed that they were going to do something that was going to save
thousands of lives.
Mr. Pollak: Well, it strikes me as a uniquely creative endeavor because there was no bed of
facts that existed as to how you would regulate or what you would do. You had
to make it up all completely from scratch.
Mr. Schultz: Right, we had to put it together from scratch, based on the investigation.
Mr. Pollak: And you had good experts.
Mr. Schultz: We had very skilled people. FDA had no expertise in tobacco. On the team was
a single person with a history of working on tobacco, Judy Wilkenfeld, whom I
mentioned and who had spent so much time on advertising at the Federal Trade
Commission. She really did understand the mentality of the companies. FDA did
an amazing investigation that, in combination with documents obtained by trial
lawyers, created a massive amount of information. There were also tobacco
company whistleblowers that ended up working with FDA.
As a result, FDA was able to put together a very powerful case in terms
of jurisdiction. Because of David Kessler and others, tobacco was more and
more in the news, and there was increasing interest in regulating it and trying to
limit the health damage from tobacco.
Mr. Pollak: Well, let’s turn to the legal challenge, what it was, and your role in addressing it.
Mr. Schultz: And then, after that, I want to talk about the legislation, too, during this time.
Mr. Pollak: Let talk about the legislation since that came first chronologically.
Mr. Schultz: While all this was going on at FDA, there was an effort by state attorneys
general, in some cases joined by trial lawyers, to hold the tobacco companies
accountable for all the damage they had done. As you can imagine tobacco
creates enormous health costs for Medicaid and Medicare for the treatment of
lung cancer, heart disease, and so on. After the cases were filed, there was an
effort not only to resolve all the lawsuits, but also to address FDA regulation.
FDA was not part of the negotiations, but representatives from the White House
were, particularly Bruce Lindsey, a close confident of President Clinton.
We at FDA were very skeptical since a settlement could have deprived
the agency of the ability to take public health regulatory actions. In the end, we
were able to convince the White House not to sign on and those negotiations fell
apart. Sometime later the cases were settled without touching FDA’s activities.
Meanwhile there was also an effort to enact legislation that would have
confirmed FDA’s jurisdiction. And this way, we would not have had to deal
with litigation or the questions about our jurisdiction.
Mr. Pollak Who spearheaded that legislation?
Mr. Schultz Henry Waxman in the House and John McCain and others in the Senate.
Interestingly, Tennessee Senator Bill Frist, a medical doctor, was very involved.
I’m sure Senator Kennedy was an active participant also.
The White House lead was Elena Kagan, on the staff of the Domestic
Policy Counsel, and I was the lead negotiator and expert from FDA. And it
turned into a massive bill that had funding for NIH and other activities. But the
most controversial sections would have confirmed FDA’s jurisdiction.
And so there were many nights of negotiating over this. I can remember
nights when Senator Frist was negotiating. We lost the cloture vote, meaning
that we couldn’t overcome a filibuster, which would have required 60 votes.
There were 53 votes to override a filibuster, including 11 Republicans. So it
ultimately did not pass.
Meanwhile the companies had brought a lawsuit in North Carolina that
was handled by the Justice Department. The district court case was handled by
lawyers from the Federal Programs section of the Civil Division. I was very
involved in preparation for the arguments. I attended the arguments and
participated in moot courts. In the district court, we won a partial victory.
For the appeal to the Fourth Circuit, Walter Dellinger, now the Acting
Solicitor General, chose to argue it himself. This was unusual because the
Solicitor General usually argues exclusively in the Supreme Court. His decision
to argue it shows how important the case was to the Clinton Administration.
We went through all the preparation and then Walter, his assistants,
David Kessler, and I rode in a van to Richmond, Virginia, where the Fourth
Circuit is located. While we were in this bus Walter was firing questions, to
assist in preparation for his argument. The argument went on for hours.
We lost the case, with a dissent from Judge Hall. Rehearing en banc was
denied 6-3. And so it then went to the Supreme Court, but by this time I left
FDA for a position as head of the appellate section of the Civil Division at the
Department of Justice. Seth Waxman was now the Solicitor General, and he
chose to argue the case in the high court. I was very involved in preparing him,
in his moot courts, and so on. David Kessler and I attended, but it didn’t seem to
go well.
We lost 5-4. In her majority opinion, Justice O’Connor discusses a
series of laws Congress had passed touching on tobacco that she concluded
meant Congress intended that tobacco products remain on the market. She also
discussed the instances where FDA Commissioners had been asked by Congress
or elsewhere about jurisdiction, and they had consistently rejected the idea of
regulating tobacco products. So the Supreme Court held that FDA has no
jurisdiction. Justice Stephen Breyer wrote a strong dissent joined by three other
justices that adopted our theory of the case.
Mr. Pollak: So?
Mr. Schultz FDA then had to close down the tobacco program. Now the only way FDA
could get jurisdiction was through legislation. That took ten years, and I worked
on the bill after I left the Administration and was in private practice. Ultimately,
the legislation was passed in the first year of the Obama Administration and was
signed into law. It created a big program at FDA, funded by user fees, a program
with a bigger budget than the entire Federal Trade Commission. It was a long
wait but we got to a good result.
Mr. Pollak: Well, you want to close out your time at FDA?
Mr. Pollak: Let’s talk about David Kessler’s departure.
Mr. Schultz David Kessler was appointed two years before the end of the Bush
Administration. By the end of Clinton’s first term, he’d been there six years and
he was ready to leave. When this was announced it was a very big deal.
David had several deputies, but the Deputy for Operations, which
oversaw all the centers, was Mike Friedman. And Mike was appointed the lead
Deputy and then began a process for deciding who the next Commissioner
would be. I was one of the ones considered. The interviews were conducted by
groups from the White House and from the Department, including Harold
Varmus, head of the National Institutes of Health, Sally Katzen, head of the
OIRA, the regulatory part of the Office of Management and Budget, and several
The candidates included Mike Friedman, Jane Henney, who had been
the Deputy for Operations before Mike, and Mike Taylor, who had been my
predecessor. There were various other people, but I think David Kessler felt it
should be a doctor. And the Commissioner of the FDA had almost always been
a doctor. I don’t know who David recommended, but Jane Henney, who had
previously worked at NIH, was selected.
Mr. Pollak: And is she a doctor?
Mr. Schultz Yes, and I think David later reconsidered his position on this, but she was
selected. I stayed and helped her through her confirmation but then decided to
leave. I had had such a great role and so much authority under David Kessler
and then in the interim two years as well, because even though Mike was
essentially the Acting Commissioner, we shared many of the responsibilities and
Secretary Shalala looked to me for many of the most important decisions. But it
was clear now that Jane was FDA Commissioner, she needed to do it on her
own. So at that point I started thinking about what my next job ought to be.
Mr. Pollak: And was it a disappointment not to get to be the head of the FDA?
Mr. Schultz: There were a lot of people who supported me. I thought I could do a very good
job, probably a better job than the other candidates. I thought I was very
prepared for it. I had been Kessler’s number two person on all the major policy
issues. But it wasn’t something I was counting on. It wasn’t a devastating
disappointment but I’m sure I was disappointed.
This is the ninth in a series of interviews of William B. Schultz conducted by Stephen J. Pollak
on behalf of the Oral History Project of the District of Columbia Circuit. This interview was
conducted on Friday, February 25, 2022, in Washington, D.C.
Mr. Pollak: So, Bill Schultz, we are here in the Pollak kitchen; a bright sunny afternoon on
Friday, February 25, 2022.
You’ve done a good outline and the last interview concluded with you
discussing leaving your post at the Food and Drug Administration. Would you
identify the timing of all this? And tell as you wish what led you to leave the
Mr. Schultz: David Kessler left at the beginning of President Clinton’s second term and there
was a two-year period where there was an Acting Commissioner, Mike
Friedman. I was also a Deputy and had a tremendous amount of authority within
the agency. Mike mostly deferred to me on my priorities because I had a strong
relationship with HHS Secretary Donna Shalala.
Mr. Pollak: And this was what year?
Mr. Schultz: This would be the first two years of Clinton’s second term, so 1997-98.
We accomplished a lot. During that time, the Administration chose Jane
Henney as Commissioner, but she had to go through confirmation hearings
before becoming the Commissioner.
Mr. Pollak: And who was she?
Mr. Schultz: She had been a researcher at the National Cancer Institute and then she was
Deputy Commissioner under David Kessler during the Bush Administration, but
she left before I started at FDA. I never worked with her there. She had a very
different philosophy. She really viewed herself as a career civil servant. The
FDA Commissioner and my position were political positions, but she wanted to
run the day-to-day operations of the agency and wasn’t particularly interested in
major initiatives, which was what made the Kessler years and the two years that
followed so exciting. It became clear to me that it was probably a good time to
Over the years, I have observed in government, it’s often very hard for a
deputy to stay when the principal is replaced. I helped with her confirmation
and I helped prepare her for all the meetings and the hearings, but I was
interested in staying in the Clinton Administration and I looked around.
Mr. Pollak: And why were you interested in staying?
Mr. Schultz: Because the jobs were fulfilling. It was fulfilling in the same way that Public
Citizen was fulfilling or working for Henry Waxman was, but you had a staff
and you had the ability in the executive branch to accomplish an enormous
amount – even without legislation—through regulation and policy decisions.
So, I wasn’t interested in leaving unless I couldn’t find a good fit.
I learned there were two potential jobs at the Department of Justice.
One was the Deputy Associate Attorney General. The Associate Attorney
General is the number-three position at the Department of Justice. There is the
Attorney General and the Deputy Attorney General and then the Associate
Attorney General. The Associate Attorney General oversees a lot of the
Department’s civil work, including the Civil Division, the Civil Rights Division,
and the Environmental Division. Whereas the Deputy Attorney General is more
focused on the criminal aspects of the Department of Justice and oversees the
U.S. Attorneys’ Offices and the Criminal Division.
The Associate AG was Ray Fischer and I interviewed with him but
didn’t get the job. It went to Joe Onek, who is a very prominent Washington
lawyer, whom I knew. He started out at the Center for Law and Social Policy,
but he had clerked at the Supreme Court with Ray Fischer, the Associate AG.
So I couldn’t really feel too disappointed about that.
The other job that I became aware was available was Deputy Assistant
AG in the Civil Division in charge of appellate litigation. This was the Deputy
in charge of all civil appellate litigation across the country.
There are about 50-60 lawyers in the division, and it seemed like a very
exciting job to me. I hadn’t been in court since 1976, for more than ten years,
but I was still very comfortable with the idea of doing appellate litigation. I had
known Frank Hunger somewhat because of the tobacco litigation, but David
Kessler had gotten to know him quite well.
Frank Hunger was head of the Civil Division. He was the brother-inlaw
of Vice President Al Gore. This was his decision and I applied for the job.
And to show you what a loyal friend and colleague David Kessler is, he flew
down to Washington from New Haven where he was the Dean of Yale Medical
School to try to sell me to Frank Hunger as the person he should hire. There was
a lot of competition for the job and I eventually got it.
Before I started, when I was still at the FDA, Frank asked me to
participate in a number of meetings about a potential tobacco lawsuit that the
White House was pushing him to file. He was skeptical about it, as were his
other deputies. I was asked to participate because I had been so involved in
tobacco at FDA.
This lawsuit was a follow up to national litigation that had been brought
by state attorneys general against the tobacco industry to recover for health care
costs that the states had paid due to fraud and other misbehavior. I believe by
this time those lawsuits had settled. But the idea was for the federal government
to bring a lawsuit to recover both the money it had spent in the Medicaid
program and the Medicare program, and for violations of the RICO statute
which gives the federal government a cause of action where there has been a
conspiracy to defraud the public.
Mr. Pollak: And put this in time — like when Kessler came from New Haven to talk to
Mr. Schultz: This was probably late 1998.
Mr. Pollak: I see.
Mr. Schultz: I believe I started at the Justice Department at the beginning of 1999. Interesting,
a couple of days before I started the job, President Clinton at the State of the
Union announced that the federal government was going to bring this lawsuit
that Frank Hunger and the other deputies in the Civil Division had been so
skeptical about.
When I started Frank asked me if I would be in charge of it, which was
obviously outside the jurisdiction of my main job in appellate litigation. But he
knew that I had a lot of background in tobacco and in litigation. And frankly, I
think his other deputies didn’t want to pursue the case. So I gladly accepted.
I think a number of people thought that I was hired at the Justice
Department to do this case. But that wasn’t true and that wasn’t the sequence of
Shortly after I started, Frank Hunger left. He told me that he was going
to leave when he offered me the job. He left to work on his brother-in-law’s
presidential campaign, and David Ogden, who had been working for Attorney
General Janet Reno’s office, became the Acting Assistant Attorney General. He
then became my supervisor, and he was very supportive of the case.
Interestingly his father had worked for HHS and had been the principal author of
the famous 1964 Surgeon General’s report, which was the classic document on
the devastating diseases caused by tobacco.
Mr. Pollak: So, you stayed at the helm of the appellate section of the Civil Division at DOJ
for two years, is that right?
Mr. Schultz: Yes
Mr. Pollak: And Ogden was your immediate supervisor during that time?
Mr. Schultz: Yes
Mr. Pollak: I see. So you worked closely with him?
Mr. Schultz: Very closely.
Mr. Pollak: I see. Well, but did you then handle the tobacco litigation?
Mr. Schultz: I was in charge of it. The initial effort was to put the case together and then file
the litigation. But yes, I was in charge of the tobacco case that the Department of
Justice brought.
Mr. Pollak: And I think that history would be interested in who put the case together. Who
led the litigation? Where it was? What judge and how it all played out?
Mr. Schultz: We put together a component of the Civil Division that we created and named
the “Tobacco Litigation Team.” Initially I got help from some of the best people
in the Civil Division. From the Appellate Division I enlisted Mark Stern, a
senior lawyer there, and Alisa Klein, who had been a neighbor and was one of
the few people I actually knew in Civil Appellate.
I was given authority to do a substantial amount of hiring because there
was a lot of interest within the Justice Department to do this work. But I also
was determined to hire people from outside the Justice Department as well as
Mr. Pollak: Why?
Mr. Schultz: The Civil Division is a defensive organization with the exception of civil fraud.
All its work is in defending the government. It takes a much different mentality
to be a plaintiff in a case and to initiate a case. I wanted to take advantage of the
tremendous abilities of the Civil Division lawyers, but I also wanted to interject
some plaintiffs’ energy into the case.
So, we did hire a few people from the Fraud Section which initiates
cases, but we brought on others from the outside as well, including Colette
Matzzie, who had been at Public Citizen Litigation Group, and Andrew
Goldfarb, who had done some work with my friend from the Bork hearings,
Ralph Neas. We also brought in several others and put together a very talented
team. Patrick Glenn became the director, responsible for the day-to-day
management of a team of about 20 lawyers.
Mr. Pollak: Meaning what?
Mr. Schultz: The first thing we had to do was develop the theory of the case. We put together
a team to do that and I brought in a lawyer who had been very key in the state
cases. The best-litigated state tobacco case was litigated by Mike Ciresi and his
law firm in Minnesota. It was clear they really knew what they were doing.
They actually assigned partners to read all the documents. His right-hand person
was Roberta Walburn, and I persuaded her to move to Washington for three
months to help us develop this case. We drew on her expertise and on expertise
around the Justice Department. For example, I brought in David Barron from
the Office of Legal Counsel, who was an expert on the Secondary Payer Act, the
Medicare statute that allows Medicare to recover product liability claims. And
Susan Davies, who worked with Joel Klein in the Antitrust Division, because we
were looking at potentially an antitrust case too. David Barron is now Chief
Judge of the First Circuit and Susan Davies went on to become counselor to
Senator Patrick Leahy. She worked at the White House under President Obama
and held several important positions in government. At one point, I arranged for
David Kessler to come down to D.C. and talk to this group because I wanted to
inspire them about what was at stake and David was able to talk about the
devastating public health consequences of tobacco.
We spent about six months putting together the case and we looked at
various theories – antitrust, battery, other theories – but in the end, we made two
arguments. One was under the Medicare Secondary Payer Act, which would
essentially allow Medicare to recover for health care costs; and the second was
under the RICO statute –a civil statute that allowed the government to sue where
there had been mail and wire fraud and to obtain injunctive relief looking
forward against those who violated the statute.
Mr. Pollak: And where did you bring the suit?
Mr. Schultz: We brought it in Washington, D.C. It turned out there were two other tobacco
cases pending before two different judges and so we had the option to file it as a
related case before either judge. I told the team that this was the most important
decision we were going to make. We chose Judge Gladys Kessler and filed it
before her, which in hindsight I think was an excellent choice.
Mr. Pollak: Who was the other judge? Do you remember.
Mr. Schultz: I do.
Mr. Pollak: Do you want to leave that out?
Mr. Schultz: Yes, the judge is a friend.
Mr. Pollak: Right. Ok. So what would you like to say about the tobacco litigation? What
made it a ripe time to go against tobacco in 1999 or 2000?
Mr. Schultz: The Clinton Administration became interested in this litigation after state
attorneys general had brought cases against the tobacco industry. Those cases
were an attempt to recover state medical costs based on fraud. I think most of
the costs were under Medicaid and the state attorneys general ended up with a
very large and meaningful settlement that not only paid the states billions of
dollars but set up Truth Initiative, a public advocacy group to advocate for
tobacco control, that received $500 million dollars. Under the settlement, the
companies agreed to major changes in tobacco advertising and in their conduct.
And because of that settlement, there was tremendous interest in whether there
was a case the federal government could bring. Our theory was that the
Medicare Secondary Payer Act case was a basis for recovering health care costs
that the federal government had paid under Medicare because of the misbehavior
of the tobacco companies. By this time, because of the state work, because of
the Waxman Committee’s work, and because of Kessler’s work at FDA, there
was a very solid foundation for proving the tobacco companies knew the risks of
tobacco going back to the 1950s — long before the Surgeon General’s report.
They used their trade association to confuse the scientific discussion and to
create doubts about whether tobacco caused lung cancer, heart disease, and other
ailments. The tobacco companies had been very successful in keeping people
who smoked from quitting.
The tobacco companies marketed their products to children because they
understood that new smokers were almost all children. Ninety percent of
smokers started before the age of 18. They had a very sophisticated marketing
campaign that included cartoon characters like Joe Camel to addict children to
tobacco. So, the whole issue of tobacco health and tobacco health care costs was
very much a priority for the Clinton Administration, and it had, as I mentioned
before, tried to pass major legislation, an effort which had barely failed. The
challenge to the FDA regulation was being litigated through the courts, but this
seemed like another opportunity.
The case was litigated for ten or more years after the Clinton
Administration, long after I left the Justice Department. But in the end, Judge
Kessler had a long trial, and she wrote an opinion that was more than 1000 pages
long that has finding after finding about the fraud of the tobacco industry and the
devastation that it created. She ended up imposing various kinds of injunctive
relief. The case went up to the DC Circuit several times. But it is regarded as a
great success.
I should add a couple of other things. Because this was such a priority,
David Ogden, the head of the Civil Division, was very involved and the
Attorney General was very involved. In the summer of 1999, we were ready to
file the case and Attorney General Janet Reno was ready to sign off on it, in the
middle of the Elián González matter. A child had been found in the waters
between Cuba and United States. His mother attempted to escape with him but
had drowned, and there was a very public custody fight between his uncle who
lived in the U.S. and his father in Cuba.
Janet Reno, who was from Florida and had deep connections there, was
very pre-occupied with the Elián González matter, but in the middle of all this,
she had to make a final decision about whether we were going to bring our case.
She ultimately authorized it and the case announced at a big press conference on
the day we filed.
At some point during my tenure, Patrick Glynn stepped aside as the
director of the Tobacco Litigation Team and was replaced by Sharon Eubanks.
In 2001, after Al Gore had lost the presidency to George Bush, there was a
question as to whether this case would survive. There wasn’t a lot of support in
the senior leadership in the Justice Department. Those discussions were leaked,
which embarrassed the Department, and the case actually survived.
The Tobacco Litigation Team never got the support it would have gotten
in a Democratic administration, but they stuck with it and they litigated the case
year after year, and did, from what I know, a terrific job.
Mr. Pollak: Why don’t you describe your role as the case went along. Your own personal
Mr. Schultz: I was ultimately involved in developing the theory of the case and putting
together the team; and then in reviewing and editing every pleading that was
filed. I was very involved in the case during my time at the Justice Department.
I devoted a lot of time to it.
Mr. Pollak: How did you divide your time between tobacco and running a division of 60
Mr. Schultz: I probably spent a quarter of my time on tobacco and the rest on the appellate
job, which is a big job. As I mentioned, Bob Kopp was Director of Appellate
Staff in the Civil Division, and there was also a very strong senior leadership
team. Interestingly, my office was in main Justice and the entire Civil Appellate
Division was in a different building about three blocks away. because their
offices in the Justice Department were under construction. My secretary and I
were in a little group of offices around David Ogden who – as I said – was the
Assistant Attorney General. I got involved in what seemed like the major cases,
which were appropriate for me to be involved in.
Mr. Pollak: Did you have any personal assistants or lawyers? Or did it go directly from you
to Kopp?
Mr. Schultz: No, I did not. Everyone I worked with were career lawyers in the Appellate
Division. By the way, one very senior appellate staff lawyer who has become
prominent is Doug Letter.
Mr. Pollak: Yes!
Mr. Schultz: As you know, Doug is now counsel to House Speaker Nancy Pelosi, a position
that he has held since the Democrats won the House back in 2018. He has
brought and argued major cases in the federal courts, including many in the
Supreme Court.
Doug and I were next-door neighbors when I was growing up, although
his family moved to California when he was probably six years old and he was
five years younger than I. So we didn’t play together but our parents were very
good friends. When I was at Public Citizen, I argued a number of appellate
cases against him. So, he is somebody that I knew well, and I remember he had
a nice dessert party for me to welcome me to DOJ.
There were a few other lawyers there that I knew, but it was –was and is
– a very talented group of lawyers. These are difficult jobs to get and the
lawyers just do litigation in the federal circuit courts of appeals.
Mr. Pollak: What was the ultimate decision in the tobacco case?
Mr. Schultz: In 2006, Judge Kessler rendered a decision that the tobacco companies had
violated the civil RICO statute and had engaged in a conspiracy over 30 or 40
years to deceive the public about the health risks of tobacco, and marketed
tobacco to children. After many years of further litigation, she ordered the
companies to publish statements to correct their deception about the risks of
smoking and the addictiveness of nicotine. Her 1000-page opinion meticulously
catalogues the companies’ unlawful behavior.
Mr. Pollak: So, you have a section in the outline about the basic job of the head of appeals
and you alluded to it, but is there more to say?
Mr. Schultz: Yes, there is probably a little more to say. There are several components to it.
One component is authorizing appeals. When the government loses in the
district court, a decision has to be made as to whether to appeal it to a circuit
court. And the process is generally that the federal agency involved makes a
recommendation. The recommendation is submitted to Civil Division’s appellate
section, my office. It is first reviewed by one of the career lawyers who writes a
recommendation as to whether the government should appeal. So I was
involved in making that decision. The recommendation is then submitted to the
Solicitor General’s office and the Solicitor General makes the decision. But we
listened very conscientiously to the agency’s recommendations and the Solicitor
General generally deferred to what we wanted to do. So that’s one part of the
The second part is reviewing briefs and editing briefs. There is so much
going on you obviously can’t read them all. I would have to identify the ones
that were major issues or one I was particularly interested in. For example,
those involving Food and Drug Administration. It was my job to clear those
briefs and to spot any issues that could be particular problems for the
administration; whether a policy matter that could have to do with issues that cut
across different departments such as standing or exhaustion or other threshold
I had a close working relationship with Solicitor General Seth Waxman
because many of the cases the Solicitor General was arguing were cases that our
team had argued in the courts of appeals. We would review all the Supreme
Court papers and comment on them, participate in the moot courts for the
Supreme Court arguments, and generally work very closely with the Solicitor
General’s office. The Deputy Solicitor General for the Civil Division then and
today was Ed Kneedler who was a law school classmate of mine, so he is
somebody I had known for a long time.
Occasionally I testified before Congress, maybe once or twice, and I
argued cases in the courts of appeals. Over two years I argued six cases so there
was a fair amount of time preparing for that.
Mr. Pollak: It is interesting to me that there is sort of a one-on-one relationship between the
Deputy Assistant in charge of appeals and Bob Kopp, the Director in charge of
appeals. It seems kind of a strange organization.
Mr. Schultz: It worked well. Bob Kopp was a very talented but self-effacing person. There
was never any tension. He was very reliable, and he was always very respectful
of what I wanted to do.
Mr. Pollak: What did you bring to your oral arguments having litigated for Public Citizen
and working in government at the FDA?
Mr. Schultz: You know it’s interesting, because I initially wondered how somebody in my
position should handle these oral arguments. The Department had a career
lawyer who did most of the work and who may expect to argue. I didn’t want to
be seen as taking the argument away from the career attorney. When I asked Bob
Kopp about that he said the best thing to do if you want to do an argument in a
case is to get involved early on. Then everybody knows it is something you care
about and it won’t be a surprise that you want to argue it. So I took that advice
and I don’t think I argued anything where I hadn’t done significant work on the
briefs. But again, just by the nature of the job, I wasn’t doing the original
research. There just wasn’t time and the lawyers were too good for that to make
The one exception I think of is CampbellError! Bookmark not defined.
v. Clinton. This was a challenge by a member of Congress to the War Powers
Act. I think the claim was that Clinton had sent troops to Kosovo without
authorization from Congress as required by the War Powers Act. Bob Kopp or
Mark Stern wanted me to argue it because they felt it was a political case and it
made sense to have the political deputy argue it.
Our main argument in this case was that Congressman Tom Campbell didn’t
have standing. In other words, this was a political issue between Congress and
the President, and a member of Congress did not have a right to sue the
President to challenge whether he was complying with the act. I was willing to
argue it but it put me in the position of arguing against standing, which was
exactly the opposite position I had taken at Public Citizen in many contexts. I
once estimated that I probably spent a quarter of my time at Public Citizen
arguing about standing, about whether we could get into court. I do remember
when I got up to argue, one of the members of the panel, Judge Larry Silberman,
looked at me with great surprise. He knew me well from Public Citizen and
seemed to be surprised to see me arguing for the government. But I argued the
case and won. While I was at Civil Appellate, I had four cases in the D.C.
Circuit and I believe Judge Silberman was on three of the panels. And I always
felt I had a good rapport with him. He was a tough judge but I always felt I
connected well with him in oral arguments. Interestingly, Judge David Tatel,
who has become a good friend, was on four panels.
Mr. Pollak: What other circuits did you argue in and do you have anything to say about an
argument in some other circuit as compared to an argument in the D.C. Circuit?
Mr. Schultz: I was very interested in a case about publishing journal articles without FDA
approval. I worked a lot on this issue at FDA, and I decided to argue it. The
panel was Judge Silberman, Judge Tatel, and Judge Stephen Williams. Between
the time District Judge Royce Lamberth decided the case and the time the D.C.
Circuit held its argument, Congress had passed amendments to the Food, Drug,
and Cosmetic Act that had gone into effect and that in limited circumstances
allowed for the distribution of journal articles that hadn’t been approved at the
FDA. It was a compromise that I was very involved in negotiating when I was
at the agency. The idea of the compromise was the article could be distributed if
the company made a commitment to do the studies needed to determine
effectiveness. I thought we were in a lot of trouble particularly since the panel
didn’t seem like it would be favorable to our position.
Judge Lamberth had decided that the new statute restricted distribution
of journal articles, but in fact it did just the opposite. It created a safe harbor
allowing manufacturers to distribute articles if they agreed to do the studies
required to determine whether the articles about a drug’s effectiveness were
valid. If the companies did not comply with the statute, then the pre-existing law
would apply.
I was looking for a way to save the case and thought that we should
advance an interpretation of the new statute that did not contain a prohibition on
the dissemination of journal articles, an interpretation that was contrary to Judge
Lamberth’s ruling but that I believed to be correct. The problem was the lawyers
at the Food and Drug Administration didn’t want to admit that the statute was
this limited, and I needed to concede in order to avoid a very bad First
Amendment decision. I spent the whole weekend talking to the senior lawyer at
FDA because I wasn’t going to make the argument unless she went along. I
think the Justice Department is entitled to do that, but I wasn’t willing to make
that argument without FDA agreeing. Ultimately, I convinced the lawyer, Ann
Wion, the key and most conservative FDA lawyer, and made the argument. The
lawyer on the other side was Bert Rein of the firm Wiley Rein & Fielding, a very
prominent lawyer, quite a bit more senior than I.
I laid out my theory to the court, which hadn’t been in any of the briefs,
and I remember Judge Silberman said he thought they were going to make a
major First Amendment decision but it looks like they couldn’t do that. We
ended up avoiding the issue, and the decision relied on my theory. It was sent
back to Judge Lamberth, who dismissed the case. The Washington Legal
Foundation asked for attorneys’ fees on the ground that they had prevailed. I
was adamantly against that but the lawyer in the U.S. Attorney’s Office at that
point who was handling the case in the district court strongly felt that the
government should agree to attorneys’ fees. I just wasn’t willing to have this
battle with him. You can only override career people so many times and I just
wasn’t willing to do it here.
So the Justice Department took the position that the Washington Legal
Foundation could get something like half a million dollars in attorneys’ fees, but
when Judge Lamberth considered the issue, he said, “Nothing doing.” Judge
Lamberth ruled that the D.C. Circuit had overturned his decision and he was not
awarding attorneys’ fees, so I felt vindicated.
Mr. Pollak You noted that you wanted to say something about Seth Waxman’s oral
argument in Food and Drug Administration v. Brown & Williamson Tobacco
Corp..20 What’s the case and why is it something you wanted to comment on?
Mr. Schultz This was a challenge to the tobacco regulation that we had written and issued
when I was at FDA in which FDA concluded it had jurisdiction to regulate
tobacco as a combination drug and medical device. It was a very controversial
decision, but we won most of the issues in the district court in North Carolina,
the forum selected by the tobacco industry. We lost a divided decision in the
Fourth Circuit and the government petitioned for certiorari, which the Supreme
Court granted.
20 529 U.S. 120 (2000).
We knew it was going to be a tough case and I was very involved in the
briefs and the moot courts. And we felt that the outcome was probably going to
depend on Justice Sandra Day O’Connor – that she would be the swing vote.
When Seth got up to argue it, almost immediately she said: “You’re saying
tobacco is a drug? That doesn’t make any sense.” She just squinched her mouth
up and made it pretty clear that we didn’t have her vote. Seth struggled through
the argument. We felt after the argument we were going to lose.
I remember David Kessler and a bunch of us had lunch afterwards.
Everybody had seen the argument and we weren’t feeling very good about it. In
the end, the decision was five to four. It was probably closer than we thought,
with a very effective dissent by Justice Stephen Breyer.
Mr. Pollak But you lost.
Mr. Schultz We lost. We lost and the FDA lost all its jurisdiction over tobacco. The
program was closed down and it wasn’t revived until 2010 under the Obama
Administration when Congress finally enacted legislation establishing a tobacco
program at FDA. Between 2001 when I left government and 2010, I worked
closely with the Campaign for Tobacco Free-Kids to get the legislation enacted.
Mr. Pollak You wanted to comment on cases that were brought in the Southern District of
New York under the United States Attorney and their relationship with main
Mr. Schultz As I said, Civil Division’s appellate staff was in charge of all civil appellate
litigation across the country. Any case that we thought was important enough,
we briefed and argued. Our job was to identify the most important cases,
particularly those that were simultaneously being considered in several circuits.
It was important to have us arguing and managing them so the arguments would
be consistent. Often the same attorney argued in several circuits.
The exception to this was the Southern District of New York, often
called “the sovereign district of New York,” which historically had successfully
taken the position that they should handle any case within their jurisdiction. And
this seemed wrong to me. It seemed contrary to the interests of the Justice
Department. I decided to take a run at this and try to persuade the Attorney
General to restore the Civil Division’s responsibility for those cases. I had been
in government long enough to know that I needed help and so I got Seth
Waxman, the Solicitor General, on my side to agree to this.
I also met with Deputy Attorney General Eric Holder, but he wasn’t
willing to go to bat for us. He was in charge of overseeing all the U.S. attorneys,
so he had to work with them. He just wasn’t willing to take on Mary Jo White.
Seth and I jointly made a presentation to Attorney General Reno. The
U.S. Attorney for the Southern District was Mary Jo White, who felt she had to
be very protective of her office’s jurisdiction. She was a very effective,
aggressive advocate and she flew to Washington to meet with the Attorney
General on this issue. This happened in the middle of a crisis at the Justice
Department involving a Cuban child, Elián González, which I previously
mentioned in connection with the Attorney General’s authorization of the
tobacco lawsuit.
In the middle of this crisis, Attorney General Janet Reno took an hour to
hear from Mary Jo White why the U.S. Attorney’s Office in the Southern
District was so special.
I had the head of the Civil Division and the Solicitor General on my
side, but in the end the Attorney General sided with Mary Jo White and things
remained as they were. Seth later told me it was the only internal cause he ever
lost while he was at the Justice Department. So, I guess it goes down as a
valiant effort.
Mr. Pollak Well, do you want to devote a little more time to this?
Mr. Schultz I just want to say a couple more words about the role of the Justice Department.
One interesting question that comes up is who is the client? When the Justice
Department brings a case on behalf of an agency or defends a case on behalf of
an agency, there is a raging issue about whom they represent. Many lawyers at
the Justice Department will say they are representing the United States.
Mr. Pollak So, just to make it a little more concrete, why don’t you pick a subject matter
field and make a hypothetical of representing an agency. It doesn’t need to be a
real case.
Mr. Schultz Well, let me take a real case that came up when I was at the General Counsel’s
office at HHS. As background, most administrative agencies don’t have
independent litigating authority. Whether you’re the Food and Drug
Administration or the Department of Defense, you’re represented by the Justice
Department. At the Justice Department, generally the mantra there is that the
Justice Department represents the United States. And I think it’s fairly clear the
Justice Department can make the calls on what is litigated.
You’ll recall when I was at Public Citizen, I had a case against the Food
and Drug Administration involving banning color additives that were animal
carcinogens. As a reminder the Food and Drug Administration had developed
what it called a de minimis policy for these carcinogens. FDA took the position
that if the risk to humans was trivial or very small, de minimis, it didn’t have to
be banned. It went to the D.C. Circuit, and at some point in the briefing, Richard
Willard, head of the Civil Division, read the brief and it didn’t make sense to
him. He was right. The law said animal carcinogens must be banned and there
was no de minimis exception in the law.
Ultimately, I was told the Secretary of HHS had a conversation with the
Attorney General. I guess the head of the Civil Division lost the battle, but in
the end, he was right because the court didn’t buy FDA’s argument. The FDA
lost the case because, as Richard Willard said, the agency wasn’t following the
law. But that’s a very rare situation. Usually, the Justice Department decides,
and it doesn’t get to the level of the Attorney General and the Department head.
In theory, if they disagree, the Cabinet Secretary and the Attorney General can
go to the President and the President can decide. But that’s very unusual.
Going back to my experience as General Counsel of HHS, I had a case
very early on in the Supreme Court. The issue in the case was whether Medicare
providers, doctors for example, can challenge the state Medicaid agencies over
whether their rates were adequate. Generally, the states set rates as to what
hospitals and doctors and other providers are paid for Medicaid, but there is
language that the rates have to be sufficient to attract doctors and other providers
to participate in the program. And so doctors were challenging the states’ rates
as inadequate. The question in the Supreme Court was whether there was a
private right of action. Could the doctors bring this kind of challenge in court, or
did they have to go thought the administrative process at HHS?
The U.S. government wasn’t in the case, but, as is often the case, the
Solicitor General’s office planned to file an amicus brief informing the Court of
the government’s position. And the question was, who’s side should the U.S. be
on? Should the United States side with the states or should it side with the
providers seeking adequate rates?
In this case, Kathleen Sebelius, the Secretary of the Department of
Health and Human Services, was very interested and wanted to support the idea
there was a private right of action, that the doctors could sue for adequate rates.
She wanted the Department of Justice and the Solicitor General’s Office to take
that position in the Supreme Court. There were others in the government who
agreed with this, including the Associate Attorney General, the number three
official in the Justice Department, and the White House Counsel, the President’s
lawyer. But the career lawyers in the Solicitor General’s Office disagreed. They
thought this wasn’t consistent with positions they had taken before, and they felt
very strongly that the government ought to take the opposite position of what
Secretary Sebelius wanted.
Acting Solicitor General Neal Katyal ended up backing his staff.
Nobody was willing to take this to President Obama. And so, against the desires
of the client, the federal government took the position that there was no private
right of action.
I had several meetings with the Acting Solicitor General about this,
making all the legal arguments. He told me he was certain that our argument
only had one or two votes, and it just wasn’t a position he thought the
government should take. In the end, it was a five to four decision, with Justice
Breyer in the majority, finding there was no private right of action. It was a
particularly disappointing result since it might have made a difference had the
federal government supported the doctors and the Secretary of HHS.
The bottom line in my experience is that lawyers in the Justice
Department have had different views of this. In the Civil Division, at least in the
Appellate Division, I felt the lawyers were mostly respectful of the agencies and
took their position seriously. Obviously, the Acting Solicitor General at the time
of the Medicaid case didn’t really seem to care what his client wanted to do. He
did what he thought was in the best interest of the Solicitor General’s Office.
I should note that after Don Verrilli became Solicitor General he asked
me to lunch, and it turned out he wanted to discuss this case. He had watched the
whole thing play out from the vantage point of the White House. He had been in
the White House Counsel’s Office before he became Solicitor General, and he
wanted to tell me that he had a different view. He did very much care what his
client, the Secretary of HHS, thought. It wasn’t a promise that he would always
go our way, but it was a promise that it was a new day. And, in the end, we had
many, many cases in the Supreme Court together and a very close working
Mr. Pollak You’re at a point where there came to be another presidential election in 2000
and you left the government. Right?
Mr. Schultz Right. So, it’s probably a good stopping place.
This is the tenth in a series of interviews of William B. Schultz conducted by Stephen J. Pollak
on behalf of the Oral History Project of the District of Columbia Circuit. This interview was
conducted on March 25, 2022, in Washington, D.C.
Mr. Pollak: Good afternoon Bill Schultz. It’s Friday, March 25, 2022 and we are in the
Pollak dining room and this is interview ten of Bill Schultz’s oral history. We
are looking at the years after Bill left his position in the Civil Division of the
United States Department of Justice where he had been a Deputy Assistant
Attorney General in charge of civil appeals.
Mr. Pollak: Bill, as a valedictory to that service, how do you evaluate your experience there
as you look over your life and I would like you to say something about the
nature and caliber and if you will, you may want to name some of the staff and
leadership of the Civil Division in the Department of Justice as you served in it
at that time.
Mr. Pollak: What led you to think of leaving this great job?
Mr. Schultz: It was coming to the end of the Clinton administration and —
Mr. Pollak: That being ’96 or 2000?
Mr. Schultz: This was summer of 2000. I knew there was going to be a change. I knew that
even if Al Gore, the Democratic candidate, won, there would be changes
throughout the government and throughout the Department. I didn’t want to be
hanging on, not knowing who the Attorney General would be or who my
colleagues would be and of course I didn’t know whether Gore would win. It
seemed like the right time to leave.
I wasn’t sure what I wanted to do. I had been approached by college
friends and others from large law firms in D.C. and was very resistant to that, in
part because I didn’t want to switch sides. I knew that if I went to a large firm
that they would be interested in me because of my food and drug experience and
would want me to represent large pharmaceutical companies, and I had always
been on the other side. I explored it somewhat, but I was very resistant.
I talked to Judge Bryant and he suggested that I go to lunch with a
lawyer named Steve Pollak whom he saw as somebody who had a fabulous
career in the government but also really enjoyed private practice in a firm. We
had that lunch and it may be the first time we met and I know it was delightful.
At some point I ran into a friend of mine from Capitol Hill named Ron Weich on
the bike path in Rock Creek Park and he told me that he left the Hill to go to
Zuckerman Spaeder. When he described what he was doing, it was all public
interest work. He represented the ACLU, and the death penalty project, and
various kinds of things that I didn’t know you could do at a law firm.
Ron arranged for me to interview with some of the lawyers there. I had
breakfast with Bill Taylor, Carl Kravitz, and a few others at the Tabard Inn. I
had known Bill from the Public Defender Service when I worked there for a
month during the summer of my first year of law school. They described a firm
that was very attractive to me. They had a very active plaintiffs’ product
liability practice. They had an active criminal law and ethics practice, and a
whole range of different things. But they didn’t do any lobbying and they didn’t
generally represent big companies.
Mr. Pollak: I have a number of questions. You indicated that Walter Dellinger who had
been in the government as Acting Solicitor General had involvement in your
decision-making. Is that right?
Mr. Schultz: This may be after I decided to go to Zuckerman Spaeder. Once I talked to
Zuckerman, it was really the only place I wanted to go. The problem with it was
they didn’t really have any work for me. What I was interested in doing was not
what they did. I had this vision that I could represent non-profit groups and then
in terms of business, maybe represent generic drug companies. But they didn’t
have any of that kind of work.
They did offer me a job and I decided to go there. But in thinking about
what I was going to do and maybe thinking about law firms, I did ask to meet
with Walter Dellinger. Walter had been head of the Office of Legal Counsel in
the Justice Department and then Acting Solicitor General. I had worked with
him both when we were getting the tobacco regulation cleared through the White
House and when he argued the tobacco case in the Fourth Circuit.
He had gone to O’Melveny & Myers, a big national law firm. I went to
his office and the first thing he said is, “Well, we can’t go to a conference room
because the conference rooms are all full because we’re helping Ford Motor
Company prepare for a crisis at some hearings on Capitol Hill” that had to do, I
think, with tire safety or some issue. But we went to his office and I told him
my ideas and so on and he had a great idea which was to develop an appellate
practice for trial lawyers.
He said, “There are a lot of trial lawyers around the country and they win very
big victories and then they have to go the courts of appeals and don’t know how
to do that. You might be well-suited to do that given your background in public
interest and plaintiff’s work, and then in appellate work.” I thought that was a
great idea. When I went to Zuckerman Spaeder, I went with the idea of a
generic drug practice and an appellate practice.
Mr. Pollak: I wanted you to look at thinking through your next steps. Did you consider other
kinds of opportunities, teaching or the Hill or in-house counsel or a non-profit
organization? Did those come on your screen and you turned them away or had
you somehow intellectually come to a conclusion that this was a moment to do
private practice? It’s right that you’d never done any private practice?
Mr. Schultz: Just one summer in law school. I thought about all those options, but I had
worked on Capitol Hill and by this time Capitol Hill was a different place. The
House was Republican and so that wasn’t attractive to me. I had taught but I
really wanted to do litigation, to be more active than a teacher. I thought about
going to a non-profit, but at that point that would have been an administrative
job and I wasn’t interested in that. At various times I got asked to go back to
Public Citizen to either run the litigation group or at one point to be president but
for whatever reason it didn’t interest me. What I decided to look for was a
private law firm where I might like it.
Mr. Pollak: Well, you seem to have found one.
Mr. Schultz: Yes, I was very fortunate.
Mr. Pollak: How big was it when you got there?
Mr. Schultz: It was probably 50-60 people. In the Washington office, there were about 30
lawyers and at that time the firm was a conglomeration of individual practices.
It wasn’t very cohesive. My office sat between Zuckerman’s and Spaeder’s
offices. I went there the first day and they had no work for me, so I had to figure
out what I was going to do and how I was going to get business. I went into
Roger Zuckerman’s office and said, “Do you have a brochure or a paper of some
kind that describes the kind of work the firm does?” He said, “No, but I’ll put
something together for you,” and he proceeded to dictate a description of some
of the firm’s cases and some of their accomplishments. It was the kind of firm
where the senior partner would do that for a new lawyer.
It was clear that this was not a firm that had a sophisticated promotion
component. Instead, each lawyer promoted him or herself. But I will say that
the fact that they didn’t have work for me meant I had time to spend on business
development. I talked to Ron Weich, my original contact at the firm, and one of
his clients was the Campaign for Tobacco-Free Kids, so early on I did quite a bit
of work for them.
I worked on the legislation at FDA and the Campaign was now working
on it from the outside to push Congress to give FDA jurisdiction over tobacco.
It took nine or ten years for the legislation to be enacted but I worked on it the
entire time and did other work for them. Slowly I got a mixture of clients, some
generic drug companies, and some other types of non-profits.
Mr. Pollak: How did you do this?
Mr. Schultz: I can describe a little bit of the early practice. Two projects early on were to
advance things that I worked on at the Food and Drug Administration and on
Capitol Hill. One was the work I just mentioned for the Campaign for Tobacco-
Free Kids to pass the statute giving FDA jurisdiction of tobacco, and the second
was upholding an FDA regulation that required that drugs be tested in children.
This is the regulation that I had been in charge of when I was at FDA. I
represented the American Academy of Pediatrics and the Pediatric AIDS
Foundation. On that case I worked with a young associate named Amit Mehta,
who is now a federal district court judge in D.C.
The regulation required drug companies to test drugs in kids. Before
this rule was issued, drugs were tested in adults and if a child had the disease,
there was no labeling for children and doctors are left to guess whether the drug
would work and what the dose should be. The conservative American
Enterprise Institute, which receives funds from the drug industry, and others
sued the FDA to block the rule. During the Bush administration, FDA lost in the
district court and decided not to appeal that loss.
We were following the case. After FDA decided not to appeal, we
intervened to appeal on behalf of FDA. I was very surprised to find there was
law that supported this. We took that case to the D.C. Circuit and meanwhile we
were lobbying on Capitol Hill to get this program codified. As we started
getting some favorable decisions from the D.C. Circuit allowing us to go ahead,
Hillary Clinton sponsored legislation on Capitol Hill. Ultimately the legislation
passed, and the case became moot but it was a big accomplishment.
I also represented a number of public interest groups, including the
Center for Science in the Public Interest, the Pew Foundation, and Trust for
America’s Health. We did studies for the Woodrow Wilson Center. We did
some work for the American Legacy Foundation, a tobacco group formed as part
of the big tobacco settlement. I did an increasing amount of work for generic
drug companies, whom I represented before FDA and in court.
I also worked on a very interesting opioid case in West Virginia. My
friend Steve Annand, with whom I had worked in Alexandria very early in my
career, had gone to the firm Cohen Milstein Hausfeld & Toll. They were putting
together a case in West Virginia against Purdue Pharma for marketing
OxyContin, the powerful opioid, as nonaddictive. They were representing the
State of West Virginia, and they were also looking at cases of individuals who
had become addicted. This was in about 2001 or 2002, and long before the
opioid crisis was recognized for what it is today. But I did quite a bit of work on
that and ultimately it had a disappointing result. The state case was settled by
the West Virginia Attorney General, kind of on the cheap, and various lawyers
in West Virginia got a chunk of money.
In preparing the case we went to rural areas in West Virginia that had
been devastated by opioids, which had been unlawfully promoted by Purdue
Pharma. Ultimately, Purdue Pharma pled guilty to criminal charges and now
they’ve filed for bankruptcy as a result of the opioid litigation.
Mr. Pollak: Where did you litigate the cases that you brought? Did you select locations that
you thought were favorable to your suits?
Mr. Schultz: Most of my cases were administrative law cases and my default was to bring
them in the District of Columbia. I had one very interesting case brought in
Baltimore, Maryland, by GlaxoSmithKline trying to block the approval of a
generic drug. I did a Fourth Circuit appellate argument for another case that
lawyers in my firm had done. The West Virginia case was in federal district
court in West Virginia. Well over half of the litigation was in the District of
Litigation was only part of my work. I also worked to persuade
Congress about tobacco policy or generic drug policy or drug pricing policy or
trying to persuade FDA on those issues. I liked that part because it gave me a
chance to participate in public policy and advocate for policies I believed in.
Mr. Pollak: To what extent were you litigating and to what extent were you lobbying and
what was the nature of your lobbying effort? How many years are we talking
Mr. Schultz: Ten years. I imagine maybe 20% of my work was lobbying but very little of that
was talking to congressional staff. Much of the time was spent preparing
materials or preparing others to testify. I was often asked to testify not for clients
but on public policy issues because I had been on the Hill and knew the staff.
Maybe 30% was litigation.
I spent a lot of time writing articles or making presentations before the
Federal Trade Commission or Food and Drug Administration or other agencies.
I spent time working with clients that were trying to get a drug approved at FDA
and I was helping them prepare for an FDA meeting or helping them think
through what their regulatory strategy ought to be.
Mr. Pollak: Did you have a team that you worked with at Zuckerman? Who were they and
where did you find them?
Mr. Schultz: When I came to Zuckerman, no one had done FDA law and the firm had
relatively little administrative law experience. I was able to get some very
talented associates interested, I think, because the work was so interesting. I
worked a lot with Carlos Angulo and Sasha Miller, and then I convinced Peggy
Dotzel, with whom I worked in FDA’s Office of Policy, to come and work parttime
while her children were very young. Lisa Barclay, with whom I had worked
on Capitol Hill and at FDA and then recommended for a clerkship with Judge
Bryant, had joined a law firm where she was not happy. She joined Zuckerman
Spaeder. Andrew Goldfarb, whom I had hired for the Tobacco Litigation Team
at the Department of Justice, told me he was interested in leaving DOJ and I
persuaded him to apply and the firm to hire him. Those are probably the lawyers
I worked with the most. None of them were full-time and I think an advantage
being at Zuckerman Spaeder was I was able to get lawyers where I needed help,
but I didn’t have the pressure of having to support lawyers if I didn’t have work.
It gave me the ability to turn down work that I didn’t want to do.
Mr. Pollak: Balancing all the demands that one has as a litigator is challenging.
Mr. Schultz: It is. One advantage I had is that most of the litigation I did was not trial work.
It was more like what I did at Public Citizen. The cases raised legal issues and
were reviewed on the administrative record without a trial. I occasionally took
depositions but participated in only one trial the entire time I was at Zuckerman
Mr. Pollak: How did you develop the business? How did it come to you? What was your
Mr. Schultz: Well, there are no secrets. I always used to say to my colleagues that our best
method of business development was to do excellent work and let other people
see it. A certain amount of it came from petitions we had filed at FDA or other
types of work that got our name out there and people saw. I did a fair amount of
writing and speaking, which had the same effect. I took my friends out to lunch
just to keep my name out there. I never knew where the business would come
from and I also never really knew how it got there. But I did learn a lesson early
on, which was not to overthink the issue.
Mr. Pollak: Meaning what?
Mr. Schultz: Well, I’ll tell you a story. One of my first clients was Barr Pharmaceuticals, and
they had some issues before FDA and HHS.
Mr. Pollak: Bruce Downey?
Mr. Schultz: That’s correct, he was the president. Around that same time early in the Bush
Administration there was a very controversial decision FDA was going to have
to make about RU486, known as the abortion drug. It was a pill you could take
very early in pregnancy and it would induce a miscarriage. I think it had been
approved during the Clinton Administration and there was a lot of pressure on
the Bush Administration to change that decision. I wrote an op-ed article in The
New York Times attacking the idea that the administration would change their
decision. After I wrote it, I got concerned. I thought, “Wow, I probably made a
big mistake because I don’t know if Barr is going to be so happy about me
attacking members of the administration.” But the net result of it was Barr never
said a word about it. Someone whom I had known vaguely from Capitol Hill
who worked at Serono, a generic drug company, called me and said, “I read your
article in The New York Times and it occurred to me maybe you can help us on
this matter.” I think my business development mostly came from those two
sources. Trying to keep my name out there and trying to do good work.
Mr. Pollak: Did you work with your team on those, is that how they developed?
Mr. Schultz: Yes, typically. The New York Times op-ed and other articles I wrote myself.
Often it would be an article that was co-authored. Peggy Dotzel and I wrote a
very detailed chapter about generic drug law in a food and drug law book, which
is a reference book for lawyers.
Mr. Pollak: What’s become of your team?
Mr. Schultz: Sasha Miller, Carlos Angulo, and Andrew Goldfarb all became partners. Carlos
was at the firm when I returned after working in the Obama Administration, but
he has since left to become a high school teacher at Georgetown Day School.
Sasha and Andrew have gone in different ways and are very successful at the
firm. Andrew still does food and drug work. He took over the tobacco work for
the Campaign for Tobacco-Free Kids while I was in the Obama Administration.
We still work a lot on that and on some food and drug matters. Lisa Barclay
became Chief of Staff to Peggy Hamburg when she was FDA Commissioner in
the Obama Administration. She left for Boies Schiller and then went into the
Biden Administration, first as the FDA Deputy General Counsel and then as the
White House Deputy Covid Coordinator. Peggy Dotzel joined me at HHS to be
a Deputy General Counsel and then she came back to Zuckerman as a partner
when I returned. I still work very closely with her.
Mr. Pollak: Did you engage in teaching during your time at Zuckerman?
Mr. Schultz: Not in a formal way. I was occasionally asked to teach classes and I made a
point to volunteer to teach at the law school at Washington University when my
daughter was in college there. Once or twice a year I would go to Washington
University to teach a class because I knew Rachael probably didn’t want me to
come just to visit her but if I was there teaching a class, she was glad to spend
time with me.
Mr. Pollak: So, this was a period of time from – it’s 2000 to 2010?
Mr. Schultz: Yes, 2001 to 2010. I left the Clinton Administration in December of 2000. By
the time I left it was clear that Al Gore had lost the election. So once again my
timing was pretty good because I had a job, and a lot of other people didn’t. I
had taken some time off mostly to spend with Rachael, and then started in
January. I will say I was very fortunate to have been able to organize my work
life in all these years to be centered around Washington. I traveled occasionally
but I didn’t have to do a lot of traveling out of town. This was very important
because my wife Sari was a reporter at The Washington Post, which often
entailed late hours. I was the one who was usually able to get home for dinner,
even if it was a late dinner.
Mr. Pollak: When was Rachael born?
Mr. Schultz: 1991.
Mr. Pollak: I see.
Mr. Schultz: She was born when I was on Capitol Hill and then she was a little girl when I
was at FDA and she would come visit and charm everybody there. She grew up
while I was at FDA, DOJ, and Zuckerman Spaeder.
Mr. Pollak: Before we close out of this decade, I have two questions. One is to have you
speak about your experience in private practice. How would you evaluate it?
How did it differ from the experience of working in the government or for the
legislature? I would like to hear something about the kind of firm you were
practicing with and its leadership and how you integrated yourself into it. It’s a
number of different questions.
Mr. Schultz: When I was thinking about leaving the Justice Department, it was clear to me
that many of my colleagues who came there from law firms were dreading the
idea of going back, so I never assumed that I would like practicing in a private
law firm. In fact, I truly enjoyed Zuckerman Spaeder and I enjoyed working
there because of both the people and the work. I think it’s an unusual law firm,
where people have close relationships and really care about each other.
Like any law firm it is a business and it was kind of a shock to me
initially that people were actually talking about business. But in that context, I
think it’s a wonderful place. Lawyers there are mostly progressive and it’s
important to them to use the law to do good work in addition to the practice that
supports themselves and the firm financially.
The other thing I would say is that I was very fortunate to develop a
practice that was meaningful to me. The generic drug area, which is the core of
the business piece, seemed important because generic drugs are a big part of the
answer to high drug prices. I was able to do a good dose of public interest work,
some of it paid and some of it pro bono. The firm generally left me alone and
didn’t question what I did.
I was always appreciative that they were very supportive of the generic
drug practice, which meant in some cases turning down engagements from large
pharmaceutical companies because it was clear we could not do both. Having
said that, it wasn’t as though Zuckerman Spaeder was going to become
Covington & Burling to pharmaceutical companies. The work we were offered
was local counsel work, a small amount of work, but there were often battles
within the firm about that, and the leadership was very supportive of me and my
practice. I never felt I was at the core of what the firm did. The core of what the
firm did was criminal work, securities work, investigations, lots of trials. My
practice was separate and very different, but they were very supportive of it.
Mr. Pollak: What do you say about that comparison between being a lawyer in private
practice in Washington, D.C., and being a lawyer in the Department of Justice or
a lawyer on the Hill?
Mr. Schultz: When people ask me to compare the two, I always say that the difference is in
private practice you work on things that were not important enough for you to
get to in the government. For me there is no comparison. The government jobs
are wonderful. You get to work on big, important, challenging issues in much
the way you do as a public interest lawyer. But in government there’s a much
greater opportunity to have an impact than as a public interest litigator. I’m not
saying that private practice isn’t interesting and rewarding, or that you can’t
work on important matters in private practice.
Mr. Pollak: Did you have time for your non-work life than you had had in the government or
on the Hill?
Mr. Schultz: It varied. When I was on the Hill, there were slow times and very intense times.
During the summer, for example, or if Congress was out of session, you could
devote more time to your personal life. Most of the time I was on the Hill, at
FDA, and the Department of Justice, I had a young daughter as well. Most of
my time was spent working or with my family, and I didn’t have a lot of leisure
time. That was true at Zuckerman Spaeder, too. I always tried to make my wife
and daughter the priority but what I didn’t get to do as much as I would have
liked is to play tennis or get other kinds of exercise. In government I felt I was
sometimes shortchanging seeing friends in a way I didn’t have to at Zuckerman
Mr. Pollak: That concludes my preparatory work respecting this decade at Zuckerman –
almost a decade. The time of George W. Bush is concluding. Did you
participate in the campaign of any candidate?
Mr. Schultz: That’s a great question. I was enamored with Barack Obama from the very
beginning because I had read his book Dreams from My Father, and early on
was asked to participate in his campaign. When they talked to me and I told
them I was a registered lobbyist, they said that disqualified me from helping
because he had made a pledge not to accept money from lobbyists and not to
have anybody who had worked as a lobbyist on his campaign, so I did not work
on the campaign.
Mr. Pollak: What was the moving force that brought you into the staff of the Obama
Administration? Did you talk your way into identifying something or did they
come to you with a proposal?
Mr. Schultz: I think it was a mixture of both. I was very interested in working in the
administration if there was something appropriate. The two jobs I was interested
in were Commissioner of the FDA or General Counsel of Health and Human
Services. I realized the FDA job was a long shot because I was not a medical
doctor or scientist, but I had many friends who were in key places in the
administration, including the White House. At HHS, initially the President
nominated Tom Daschle to be the Secretary of Health and Human Services.
Mr. Pollak: And who was he and where was he? When was this in time?
Mr. Schultz: The fall of 2008 after Obama was elected. Daschle had been a Democratic
senator from South Dakota and Majority Leader in the Senate. I had a number
of friends who were going to be in the administration who worked with him, and
he was an early supporter and confidant of President Obama. He was going to
be either the President’s Chief of Staff or Secretary of Health and Human
The Secretary of Health and Human Services was going to be a very
important job because President Obama’s number one priority after dealing with
the economy was national healthcare. It became clear early on that the Deputy
Secretary was going to be Bill Corr, my close friend, whom I’ve talked about. I
took Bill’s place on Congressman Waxman’s staff, and it was Bill who
introduced Sari and me and with whom I worked very closely over many years.
During the George W. Bush administration, he had been executive director for
the Campaign for Tobacco-Free Kids, so a lot of the tobacco work I did at
Zuckerman Spaeder was with him.
Ultimately, Senator Daschle was nominated to be Secretary of Health
and Human Services and his Chief of Staff was going to be Mark Childress,
whom I also met while working for Congressman Waxman. At that time, he
worked for Senator Kennedy. He went on to have a key position with Senator
Daschle when he was majority leader and he was very, very close to Senator
Daschle. Bill and Mark both talked to me about being General Counsel. Mark
set up an interview with Senator Daschle. I interviewed with him and then he
offered me the job.
Mr. Pollak: Was this before January 20th when the new President was sworn in early on?
Mr. Schultz: Yes. I was not nominated but that was the plan.
Mr. Pollak: Was the plan fulfilled?
Mr. Schultz: No, because Senator Daschle was never confirmed to be Secretary of Health and
Human Services. He had a very messy confirmation situation due to some
antagonism between him and Montana Senator Max Baucus, Chair of the Senate
Finance Committee, one of two senate committees charged with confirming the
Secretary of HHS. It turned out that Senator Daschle had been given access by a
client to a chauffeured car and his South Dakota accountant hadn’t known to
report that on his taxes. So it was a messy confirmation situation, and his HHS
nomination was withdrawn.
The President then nominated Kansas Governor Kathleen Sebelius, who
was finishing up her second term. About April of 2009 she was confirmed and
became Secretary of Health and Human Services.
Before then, it had been a mess. Mark Childress represented HHS at
various White House meetings. There was a void and there was really no
leadership because Bill Corr, who was going to be Deputy, had not been
confirmed. But this situation is not unusual at the beginning of an
administration. Anyway, Kathleen Sebelius started, and Mark did not want to
stay as Chief of Staff, but he stayed for a period of time to help her and Bill Corr
get confirmed.
Bill set up an interview for me with Kathleen, and she made it clear that
she wanted to hire me to be General Counsel. There was a problem, which is
that the Obama Administration initially had an uneven position on whether a
registered lobbyist was going to be able to serve in the Administration.
I should back up and say that I had been able to do a lot of work on the
transition. Initially, the HHS transition team was run by Kevin Thurm, who had
been Deputy Secretary and Chief of Staff of HHS in the Clinton Administration.
He asked me to be on the team, as did Bill Corr and other former colleagues. At
some point there was an article in The New York Times about how Obama had
attacked lobbyists. And even though he had said in his campaign that he would
have no lobbyists in his Administration, now there were lobbyists working on
his transition and he was appointing registered lobbyists to positions in
government. He reacted with a firm rule that he wasn’t going to have any
registered lobbyists in his government.
By this time, I had ceased all lobbying. As a lobbyist you are required
to register so who you are working for is public. I registered as a lobbyist at
times when it was not required because I didn’t want to take a chance that I was
breaking a rule. I didn’t want anybody to ever accuse me of violating the
registration requirements, so in this context it was a little bit messy.
Even though I was no longer registered, the new administration had a
general rule that you couldn’t have been registered for two years. It didn’t seem
to matter who your clients were. It didn’t matter if they were a public interest
group such as the Campaign for Tobacco-Free Kids or Ford Motor Company.
But when I talked to Kathleen Sebelius about this, she said, “Well, I can take
care of it. I’m really not asking the President for anything so I don’t think it will
be a problem.”
It turned out to be a big problem. There were a number of lobbyists
who had gotten announced before this absolute rule was adopted. There were
some lobbyists who were able to get appointed because they weren’t Senate
confirmed. But the General Counsel of Health and Human Services had to be
confirmed by the Senate and I had registered for a significant number of
organizations, mostly public interest groups and a generic drug company.
Ultimately, the top WhiteError! Bookmark not defined. House staff decided
that I could not be nominated until I had not been registered for two years.
Kathleen Sebelius then decided that she was going to wait, which was
extraordinary, particularly after the Affordable Care Act was enacted in March
2010. They certainly needed a General Counsel. But she made the decision to
wait, and she has told the story publicly many times about how the people at the
White House kept sending her candidates, whom she would interview and reject.
During the wait and after the Affordable Care Act was passed, she
convinced Mark Childress to come to HHS as acting General Counsel. He had a
great relationship with many of the key players in the White House at that point
and occupied the job for a period of time, until I was cleared. This is the same
Mark Childress who had briefly been her Chief of Staff. After that he went to
work with Senator Kennedy on the Affordable Care Act. When Senator
Kennedy died, he worked for Connecticut Senator Christopher Dodd or whoever
was the lead of that committee.
Since this was after March 2010 when the Affordable Care Act was
enacted, it would have been particularly difficult to keep the job of General
Counsel open. The ACA required some regulations providing healthcare money
to be adopted very quickly, and after those were adopted, and my two-year
waiting period had passed, Mark left HHS. He went to work at the Justice
Department and ultimately back to the White House as a Deputy White House
Chief Counsel and I got to work with him again on Affordable Care Act and
other matters.
Mr. Pollak: The story now is that you’re in the toils of being barred from the administration,
having been a lobbyist. You continued at Zuckerman Spaeder?
Mr. Schultz: I did.
Mr. Pollak: And what happened?
Mr. Schultz: I continued there. I had plenty of work. The lobbying wasn’t such a big part of
my work anyway. I could still do everything except talk to people on Capitol
Hill. Early in the administration, for the first six months, I was an informal
advisor to HHS. They would call me with their legal issues between Obama’s
election and inauguration. Probably for nine months, I spent a third to half of my
time working for the transition team and as a volunteer for the administration.
After I was disqualified from that voluntary position, Mark Childress put me in
charge of managing executive orders for the Department of Health and Human
Services that would be adopted in the first days of the Obama Administration.
I had a team of volunteers who drafted a whole range of executive
orders. One of those we drafted was the first executive order that President
Obama announced, which reversed the Bush administration’s ban on stem cell
research. Stem cell research was very controversial because it relied on fetal
tissue and tied in with the abortion issue, and the Bush Administration had
severely limited the National Institutes of Health’s funding and authority in this
area. One of the President’s first executive orders directed the National
Institutes of Health to reverse that prohibition.
Once the Administration was in place, after January 20, 2009, Bill Corr
and others in the Secretary’s office would frequently call me about various kinds
of legal issues. Ultimately, they got enough of a legal team in place that they
needed to rely on me less. They did this by hiring some of the Deputy General
Counsels in advance of my getting there.
The Office of General Counsel at HHS is set up so that in addition to the
General Counsel, there are political Deputy General Counsels who do not
require Senate confirmation and can be hired quickly. Typically, the General
Counsel selects those after he or she arrives, but it didn’t make sense to wait for
all those jobs to be filled until I came, so they hired after consulting me. I was
asked to make recommendations, so some of my deputies started before I did.
Mr. Pollak: The reality was that Childress came in and filled in for a while and there were
other actings, but Sebelius was committed to you from the first so it was a
question of running out the bar timer.
Mr. Schultz: Right.
Mr. Pollak: That was a credit to you?
Mr. Schultz: I would never have predicted it, that’s for sure, that they would hold the position
open, particularly after the Affordable Care Act was enacted.
Mr. Pollak: You had known her?
Mr. Schultz: No. I think she relied on Bill Corr and Mark Childress and I think there were
others that she worked with that I knew very well.
Mr. Pollak: Describe what happened. You got word that time ran out on your two-year bar?
Mr. Schultz: Time ran out on my two-year bar in the fall of 2010 because I had de-registered
to work on the transition. At that point under the lobbying rule, I was eligible
but there still had to be White House personnel clearance and an FBI check. It’s
a big black frustrating box, and Mark Childress left, he said, in part because he
thought that would put pressure on them to process my nomination. Two years
before, they had started the FBI check and as part of the FBI check, an FBI agent
comes and interviews you. I had had that interview and two years later, another
interview was scheduled, and the same agent came to interview me. She looked
at me and said, “Why am I interviewing you again?”
Bill Corr and whoever at HHS did what they could to move it along.
There was one unfortunate aspect to it because the Supreme Court granted
certiorari in a generic drug case where I was counsel. The Court scheduled oral
argument, which would have been my first time arguing in the Court since 1989
when I was at Public Citizen Litigation Group. The job did ultimately come
through and I did explore the idea of waiting until the Supreme Court argument,
but Bill Corr wasn’t sympathetic to that idea. They worked so hard to get it
cleared saying it was an emergency, they needed me right away. My client was
very understanding, and I made various arrangements and quickly closed things
out and made the transition.
Mr. Pollak: Well, I knew you personally at the time, and I had some idea that you served as
Acting General Counsel for a period of time.
Mr. Schultz: Yes. Since I hadn’t been confirmed by the Senate, arrangements were made so I
could be appointed as a Deputy General Counsel and Acting General Counsel.
In March 2011, I started at HHS as Acting General Counsel. I was not
confirmed for two years.
Mr. Pollak: It took two years?
Mr. Schultz: Yes.
Mr. Pollak: Was there some hang up, or just Senate games?
Mr. Schultz: It wasn’t personal. The Senate was Democratic. During that two-year period,
no HHS official was confirmed, and it all related to the controversy over the
Affordable Care Act, which had become a political hot potato.
I think the problem was again that Senator Baucus, who gave Senator Daschle
trouble, was nervous about the confirmation and felt he had to have the ranking
Republican members sign off. Senator Hatch, who was someone I had a good
relationship with, at that point was in a very tense campaign to get re-elected.
Senator Baucus was not willing to push for confirmation until after Senator
Hatch got re-elected and cleared the hearing.
Mr. Pollak: What was the job you took and how do you describe it?
Mr. Schultz: The title is General Counsel or Acting General Counsel of the Department of
Health and Human Services. The Department has seven or eight operating
divisions, such as the Food and Drug Administration, the Center for Disease
Control, the National Institutes of Health, and the Center for Medicare and
Medicaid Services. It also has divisions that run major programs, such as the
Administration for Children and Families. The General Counsel’s Office has
about five hundred lawyers and it’s divided into Associate General Counsels and
Chief Counsels. Associate General Counsels are assigned to each of these
divisions. There is an Associate General Counsel for the Food and Drug
Administration, for example. There are also ten regional offices and there is a
Chief Counsel for each regional office.
Mr. Pollak: Those all report to the General Counsel?
Mr. Schultz: Yes. The regions report directly to the career Deputy General Counsel, and the
Associates report to the General Counsel. In the General Counsel’s immediate
office, there was a career Deputy General Counsel, David Cade, and he had been
acting for much of the time they had been waiting on me. There are also
political Deputy General Counsels.
To go back in history a bit, when Jodie Bernstein, a prominent
Washington lawyer, was General Counsel in the Carter Administration, there
was one deputy. When Harriet Rabb in the Clinton Administration was General
Counsel, there were two deputies. When I arrived, Ken Choe was the Deputy
for CMS and the Affordable Care Act. He had been a young lawyer in the
Clinton Administration, very junior, but afterwards he had litigated for the
ACLU for ten years in New York. He came back to be Deputy for CMS and the
Affordable Care Act. I had recommended him.
We needed a Deputy for FDA and I convinced David Horowitz, a lawyer
I worked with at FDA, to take that job. He was Deputy for FDA and some of
the public health programs, the Assistant Secretary for Health, the Centers for
Disease Control and Prevention, and so on. There was another Deputy, Sally
Howard, who came with Secretary Sebelius from Kansas. Very shortly after I
began, she left to be the Secretary’s Chief of Staff. I had her position to fill and
then created another Deputy position. I hired Gia Lee and Peggy Dotzel.
In addition, the Secretary’s office wanted me to hire somebody to do
oversight. I interviewed a number of experienced lawyers and hired Gemma
Flamberg, who had been doing oversight for the National Institutes of Health. I
always told her that I hired her because when I interviewed her, she told me she
loved to read documents.
This was an absolutely fabulous team. Every single one of them was
enormously talented and collegial. Gemma, who had been in the Department for
all of her career, described it as the dream team. I can’t imagine a better group.
There was an administrative structure to deal with budget and personnel issues.
The most important aspect of the job was to represent the Secretary.
That would be in matters at HHS in the Department, and very often with the
White House or the Department of Justice. The office also represented all the
heads of all the divisions in the Department.
And it’s a massive Department. I’ll give you an example. Even though
I had been at FDA and had been at many meetings at the Department, I didn’t
really know what the Administration for Children and Families did. Early on I
was briefed by the Associate General Counsels, who were in charge of each of
these departments, and in some case by the heads of the department so I could
begin to understand the scope of the job and what the key issues were. I was
briefed about the Administration for Children and Families, which manages
programs such as Head Start, fuel assistance programs, and various other social
service programs. During the briefing, I asked the innocent question of “what’s
the budget?” of this agency that I knew nothing about. And the answer was 50
billion dollars a year. That’s larger than all but a few states and many countries.
I’ll tell you about another conversation that gave me information about
what was at stake. Early on there was an issue about state claims for money
under the Medicaid program. Medicaid is the program that provides insurance
for people with low incomes, particularly pregnant women. The Medicaid
program is run by the states and is paid for roughly 50/50 between the states and
the federal government. It’s part of CMS – the Centers for Medicare and
Medicaid Services. There are some Medicaid patients who are also Medicare
patients, the health insurance program generally for people 65 and older. They
qualify for healthcare through Medicare, but based on their resources and needs
they may qualify for Medicaid as well.
For years there had been a problem where the states were covering
health insurance services that should have been covered by Medicare. It ended
up costing the states about two billion dollars and there was litigation over this,
but for reasons that I won’t go into it wasn’t successful. There was an effort in
the Affordable Care Act to make good on this but that didn’t happen.
The states hired a longtime Medicaid expert at the law firm of
Covington & Burling, who came up with an idea that we could use to
accomplish this, administratively without legislation, under Medicaid’s authority
to waive certain requirements. After hearing the states’ legal arguments, I
wanted to hear from the program, so we met with Don Berwick, head of CMS,
Cindy Mann, head of the Medicaid program, Jon Blum, the head of Medicare,
and various other key people. At the meeting, the head of the Medicaid program
wanted us to find a way to give the states this money because it would improve
her relationship with the states. Others at the meeting express various views.
Then I asked Don Berwick, the head of the whole program, what he thought. He
said, with reference to the $2 billion that it would cost Medicare, “Well, it’s not
that much money.” It was then that I realized I was in a different realm, giving
legal advice to a program that spent about $2 billion each day.
In the end we ruled that the Department didn’t have the authority to give
the states the money and so it never happened. If we could have found the legal
authority, we would have because the programs firmly wanted to do this and
because the states had paid money they shouldn’t have paid. That’s an example
of what’s at stake and why this isn’t the easiest job in the world. You sometimes
have to say “no” to a client when you want to say “yes.”
Mr. Pollak: It’s daunting to consider five hundred lawyers. There are many law firms that
have five hundred lawyers, but they’re all broken into smaller pieces.
Mr. Schultz: This was daunting for another reason. I had very good knowledge on food and
drug law, and good knowledge of administrative law, and good litigation
experience and experience on Capitol Hill, so I covered a lot of areas. But I had
very little knowledge of the Medicare and Medicaid programs. What I knew
about the Affordable Care Act was what I was able to read while I was waiting
for the job. There is a big learning curve, but the other side of it is there are just
fabulous lawyers there, dedicated lawyers, who were willing to teach me.
Mr. Pollak: So, things were served up to you that were well founded and papered, and you
could make decisions based on them?
Mr. Schultz: Yes, and the person in charge has to delegate. I ultimately learned to trust
people who need to know which decisions to make, and which decisions have to
come to me. I should mention that one other aspect of the job that was very
time-consuming is the litigation. There are hundreds of cases across the country
and many of them are done in the regions that I wasn’t involved in.
There was also a very active Supreme Court practice when I was there,
and we can talk about some of this in detail later, but the Supreme Court has 60
or 70 cases a year. There was one year when we had ten cases in the Supreme
Court and in other years we always had several. The Supreme Court usually
reserves the last day for its most important case of the term and there were
probably three years when the case announced on the last day was one of our
cases. I spent a lot of time with the Solicitor General and with the lawyers in the
Solicitor General’s Office on cases in the Supreme Court that were of vital
interest to the Secretary.
Mr. Pollak: You managed in a way that would make it a cohesive office. How did you do
Mr. Schultz: Well, as you say, that’s a huge, spread-out organization.
There are ten regions across the country. There had not been a
permanent General Counsel since 2003 or 2004. The last General Counsel to be
confirmed was Alex Azar in 2001. He then became Deputy Secretary during
George W. Bush’s second term and was the Secretary of Health and Human
Services in the Trump Administration.
Republican administrations I believe tend to value civil service less than
Democratic administrations. Just as an example there had been a tradition of
having award ceremonies when Harriet Rabb was General Counsel in the
ClintonError! Bookmark not defined. Administration but between the time she
left and the time I got there, there had not been an award ceremony. This is a
ceremony where a select number of lawyers in the General Counsel’s office are
designated as deserving an award because they had accomplished something
very important or worked on a team that had. We set up a fairly elaborate
system for awards. I think the first year half of the General Counsel’s office was
nominated because everybody wanted to try to reward their lawyers. The
government lawyers’ salaries are low compared to the private sector and there
are very few opportunities to reward people financially. But this was an
opportunity to award people in a way that wasn’t financial.
We established a very rigorous system for selecting people for awards.
If somebody who worked outside Washington received an award, we paid for
them to come to Washington. An award ceremony was the one time we were
allowed to use our budget to buy food and drink. We had a very nice ceremony.
I think for the first one the Secretary probably spoke, but we always had
someone prominent in the Department speak.
I organized monthly meetings of the Deputy General Counsels that were
held in my office, and I insisted that they be in person. Associates were all
around the Washington region, which meant people had to travel sometimes
from Baltimore or Rockville if they wanted to attend. I also insisted that there
would be no cell phones in the meetings.
I don’t know if you could get away with that today. I didn’t insist
people come but I said if you’re going to participate, you have to participate in
person. There won’t be anybody participating by phone. They all came for
every meeting to the extent they could. I made a point to visit the ten regional
offices around the country, which took several years to do. Many of them had
not seen a General Counsel for a very long time.
Then I got the idea of having a speaker series, where we would have
prominent officials from around the government come and speak to the Office of
General Counsel lawyers. I think it was very successful. I know that people
liked it. We got great speakers. We had David Tatel, for example, from the
D.C. Circuit; Larry Silberman, a conservative judge from the D.C. Circuit; and
Royce Lamberth, a conservative judge from the district court in D.C. but who
had had a career in government and was a very dedicated public servant.
Early on I had Justice Elena Kagan from the Supreme Court. As we
discussed her talk, she said, “Instead of my giving a talk, why don’t you just ask
me questions?” So that’s what we did, and it was so successful that’s what I did
for subsequent speakers. It made it easier for people to accept and probably
much more interesting for the audience. We had Solicitor General Don Verrilli,
Secretary of Treasury Jack Lew, and Secretary of Labor Tom Perez, who had
directed the Office of Civil Rights at HHS during the Clinton Administration.
We had two White House Counsels, Kathy Ruemmler and Neil Eggleston. We
had two former General Counsels from the Office of General Counsel, Harriet
Rabb and Jodie Bernstein, who was probably the funniest of all. We had Dr.
Anthony Fauci. I don’t remember the whole list, but it was a fascinating group
of people that came to speak to the lawyers at the Office of General Counsel.
Mr. Pollak: How is it different from your FDA policy job?
Mr. Schultz: That’s a great question. It’s very different because in the FDA job my
assignment was to decide what the best policy is. What new initiatives should
FDA take on? What should we do about food safety? How can we make overthe-
counter drugs more effective?
As General Counsel that wasn’t my job. When I was at FDA, I felt that
there were many lawyers that didn’t understand that, and whenever I spoke to
our lawyers, particularly new lawyers, I tried to explain this. Our job was to
decide whether those policies were lawful. To help make them as strong as we
could to protect them against a legal challenge in court or in Congress, to
identify the most legally sound policy. It was to explain the risk to our clients.
If the client wanted to do something that was blatantly illegal, we obviously had
to say no. But if the client wanted to do something that had very serious legal
risks, where there is a legal rationale but a significant chance it would be
overturned, our job was to explain that risk to the client and let the client decide.
A good government lawyer will try to find a way to do what the client
wants with less legal risk. That’s the challenge, but it’s a very different kind of
role. There’s no reason a lawyer can’t suggest policy nuances or suggest
policies, but it’s not their job to make policy.
Mr. Pollak: Who was your team when you started out, on whom did you rely, and what did it
look like?
Mr. Schultz: The core of my team was the deputies. The career Deputy was David Cade, who
oversaw all the regions and the office of general law, which was responsible for
contract and grant issues, the Freedom of Information Act, the Advisory
Committee Act, and various other issues. David Horowitz, Ken Choe, Gia Lee,
and Peggy Dotzel were the political deputies, although David and Peggy
technically had career status since they had previously held high level career
jobs. I also hired Gemma Flamberg as the link between our office and others in
the Department who were responsible for congressional oversight.
Below that were eight Associate General Counsels. They were all
career except FDA. When I started, a number of lawyers at the FDA’s General
Counsel Division, whom I had known for years, asked to meet with me and
proceeded to tell me that the person who was the FDA Chief Counsel was just
very unsatisfactory, that he mistreated FDA’s lawyers and that he had no interest
in learning FDA law.
Mr. Pollak: They came to see you?
Mr. Schultz: They came from Rockville.
Mr. Pollak: They were complaining about the General Counsel?
Mr. Schultz: About the Chief Counsel of FDA, about their boss. And these are all people I
had known for years and people that I trusted, so it became clear he had to be
Mr. Pollak: That’s a hard thing to do.
Mr. Schultz: Yes, and particularly hard because it’s hard to find a Chief Counsel of the FDA
from the outside. Most people who know anything about FDA law work for
companies and have conflicts. There were a few people I tried but I couldn’t
convince them. I ended up doing a great thing, which was to appoint Liz
Dickinson, an FDA career attorney, who had worked for me at Public Citizen
Litigation Group when she was in law school.
I recommended her to Judge Bryant. After clerking for him, I
recommended her at FDA, and she had been at FDA for maybe twenty years.
She’s a person of very sound judgment and a very good lawyer. She had worked
mostly on generic drug issues, and in the pecking order she was well below the
level of the FDA deputies. But I convinced her to do this and the decision was
really a joint one between me and FDA Commissioner Peggy Hamburg. When I
told Peggy I wanted to get rid of the existing chief counsel, she said, “We need
to have a replacement.” We had Liz ready to go and it turned out to be a terrific
Mr. Pollak: How did you get the one in office to leave?
Mr. Schultz: We told him.
Mr. Pollak: Did he serve at the pleasure of the Commissioner?
Mr. Schultz: Yes. The Commissioner and the General Counsel. Yes, it was a hard thing to
do but it was the right thing to do.
Mr. Pollak: What were the diversity numbers? Five hundred or whatever slice you wanted
to change?
Mr. Schultz: We had a very good mixture of men, women, people of color. I don’t know
what the numbers were in the offices. My personal office was quite diverse.
I was very proud of the fact that in terms of longevity, the record of the
office was very, very impressive. When we did the awards ceremony, I included
something on the back that had the number of people that had been there forty
years or more, thirty years or more, twenty years or more. It was a job people
Mr. Pollak: The last item on your outline was the specification of your goals as General
Counsel. Do you want to speak to that?
Mr. Schultz: Yes. Obviously, the number one priority of the Department was the Affordable
Care Act. It was enacted in 2010 and I started in 2011. It was extremely
controversial. It required numerous complicated regulations and it was clear that
there were going to be many, many lawsuits about it. I preached to my staff that
we had to write these regulations so we didn’t lose the lawsuits because we
didn’t want a reputation in the courts that we were sloppy, we weren’t paying
attention to detail, or we weren’t paying attention to the law. Generally we were
successful in that. There were of course the constitutional lawsuits about the
Affordable Care Act, and I couldn’t do anything about those.
One of the lawsuits that went to the Supreme Court, King v. Burwell,
involved interpreting the statute and a treasury regulation. That was out of my
hands and I think the regulation was issued before I came. There were lawsuits
about the contraception mandate that went to the Supreme Court. We knew what
we were getting into there. We ended up losing 5 to 4. In terms of the details in
the other regulations, I don’t think we lost a lawsuit. In many cases, where we
were doing something controversial, the lawsuits weren’t even brought. So that
was number one.
Number two, I wanted to support the FDA Commissioner, particularly
as to tobacco, which was a longtime interest of mine. Number three, I wanted to
do whatever I could to support the staff of the Office of General Counsel and to
keep the lawyers there as long as I could and make their jobs as fulfilling as
Mr. Pollak: Those are worthy objectives. What do you think you’re batting average was?
Mr. Schultz: I think on the Affordable Care Act it was great. We won the two big Supreme
Court cases. I obviously don’t take all the credit for that, but we won those, and
I think in terms of the regulations, they held up very, very well. I can’t give you
a batting average at FDA. The tobacco program had some rough beginnings, but
it did place strong leadership there and I helped FDA through some difficult
I’m proud of what I did in terms of the OGC staff. As one small
example, we started a program where staff could more easily move from
division to division, where they could go for a year and then come back. I did
try to give people opportunities to do other things, get other experiences, and get
to know each other better. I think the monthly meetings we had and the speaker
series and the award series were also good. I think they all knew that I cared
about their well-being. We talked a lot about balancing family versus work.
Mr. Pollak: You were the head acting or confirmed head for how long?
Mr. Schultz: More than five years.
Mr. Pollak: That’s a long tenure?
Mr. Schultz: It was a great job.
This is the eleventh in a series of interviews of William B. Schultz conducted by Stephen J.
Pollak on behalf of the Oral History Project of the District of Columbia Circuit. This interview
was conducted on Thursday, June 9, 2022, in Washington, D.C.
Mr. Pollak: So, Bill, welcome. We are working from a very excellent outline of Bill’s. Bill,
who was the Secretary you served at HHS? And talk to us about who she was,
what you saw, and how you’ve evaluated her. And how you evaluated your
working relation to her?
Mr. Schultz: It was Kathleen Sebelius. I did not know her before I went to work for her,
except I had an interview with her. She was born in Ohio. Her father was John
Gilligan, who had been a very progressive governor of Ohio. She came to the
Washington area for college. She met her husband, Gary Sebelius from Kansas
whose father had been a Republican congressman there. They moved back to
Kansas and for ten years she was executive director of the Kansas Trial Lawyers
Association and raised two kids. She once told me that she never thought of
herself as somebody who would run for political office. But she ended up
running for the state House of Representatives.
The first state-wide office she ran for was Kansas Insurance
Commissioner. She won, and then was elected governor of Kansas twice. I
always thought this was quite a testament to her political skills and her other
skills because here she was a pro-choice woman, progressive woman, and she
got elected statewide in Kansas four times.
Mr. Pollak: Sounds like a fairy story.
Mr. Schultz: Yes, it does, except it’s true. She knew the Clintons. I think her husband had
been nominated to be a district judge but was blocked by one of Kansas’s
Republican senators. Running up to the 2008 election, she made the judgment
that she didn’t think Hillary Clinton could win. So very early on she endorsed
an obscure senator by the name of Barack Obama. When he was elected,
initially she told me that she had indicated that she did not want to be in the
Cabinet because she felt obligated to finish her term as governor. But when
Senator Daschle’s nomination to be Secretary of Health and Human Services
failed, she was offered the position and she accepted.
I always think of her as a tremendous leader. Not just her vision and the
way she understood and explained things, but the way she was able to engender
tremendous loyalty among the people who worked directly with her and the
people around the Department who were part of her staff and part of her team.
In addition to the work, she always found time to have an interest in you. She
would ask me about Sari and Rachael and something personal. I had the sense
that this was somebody that cared about her staff and colleagues, and so we
cared about her. She was also tremendously supportive of anything I wanted to
do as General Counsel.
She understood the role of the General Counsel, and she understood that
sometimes I would have to tell her that she couldn’t do something; that she
legally couldn’t do something. It could be an ethical issue or a legal issue. She
wasn’t always happy about it, but she understood. So that’s Secretary Sebelius.
I’m a fan.
Mr. Pollak: What were the relationships in that period of the Secretary with the White
House, and how did that affect you?
Mr. Schultz: Yes, and one thing I should say if I haven’t mentioned it before, Bill Corr was
the Deputy Secretary.
Bill had been in the Department before and in Washington his whole
career. He and Kathleen Sebelius put together a tremendous team of operating
division heads and what we called staff division heads. These are the people
who run the many departments of Health and Human Services. So, it was a real
joy to enter that job two years in with this team of very skilled and very
dedicated public servants.
One difference that stuck me about HHS in contrast to the Justice
Department, the last government department I had worked in, is that most of the
political appointees at Justice came from law firms and went back to private law
firms. In contrast, the political appointees at HHS were more likely to be career
public servants. Most of them went to nonprofits or tried in every way they
could to continue the kind of work they had done at the Department, and what
they had done before they came there.
Kathleen had a good relationship with President Obama. She had strong
relationships within the White House, although what I found in the Obama
Administration and the Clinton Administration is that the relationships between
Cabinet officials and the White House is a tricky one. Since 1980, the White
House has become more dominant, its staff has gotten larger, and the
policymaking and press responsibility has really moved from the Cabinet to the
White House. There is a natural tension between the two and so while Kathleen
had some strong relationships, this doesn’t mean the White House was always
happy with what we were doing.
Mr. Pollak: Did your Secretary and your Department have particular contacts at the White
House with persons that they related to HHS concerns?
Mr. Schultz: Yes. There was Jeanne Lambrew, a longtime public health person in the Clinton
Administration, very dedicated to Medicaid, had been at the Department when
the Office of Health Reform was created, which was the office tasked with
implementing the Affordable Care Act.
By the time I arrived, she was on the Domestic Policy Council at the
White House. Jeanne was the one in charge of all the Affordable Care Act
regulations, and there were many, plus Medicaid and Medicare. For regulations,
the challenge was to get them cleared by Office of Management and Budget, or
specifically its division, the Office of Information and Regulatory Affairs, which
is tasked with doing economic analyses of regulations. In fact, OIRA as it is
known takes a more aggressive role and the result can be a change in the
substance and a very unfortunate delay.
Jeanne was able to cut through all of that. She was absolutely key to the
implementation of the Affordable Care Act and other programs. There were
certainly others as well. There were four or five Chiefs of Staff at the White
House, and the Secretary had different relationships with different ones. She
had some very good relationships with the Secretaries of Education and
Treasury, and good relationships throughout the government. The White House
is a bunch of different power centers and you can’t have good relationships with
all of them.
Mr. Pollak: Do you want to identify any that she didn’t have good relationships with?
Mr. Schultz: No. I don’t think it was so much somebody who didn’t like us as much as
maybe they had other priorities. Nancy Ann DeParle for the first couple of years
of the Obama Administration was the White House person tasked with doing
healthcare. Then it was Mark Childress, Phil Schiliro, and Chris Jennings.
Chris, Mark, and Phil were people I had a very strong connection to and had
previously worked with closely. I had also known Nancy Ann for a long time.
Phil Schiliro was Congressman Waxman’s Chief of Staff; Mark had been on the
Kennedy staff and was set to be Daschle’s Chief of Staff if Daschle had become
HHS Secretary. I’d known Chris Jennings for years when I worked for
Congressman Waxman and in the Clinton Administration. I had known Nancy
Ann while on the Hill and during the Clinton Administration. Those
relationships were critical. And Secretary Sebelius had good relationships with
all of them.
Mr. Pollak: Well, what were the key decisions or where were key decisions in your tenure
made? At the White House on HHS area matters or at the Department? That’s
always in tension.
Mr. Schultz: In terms of the Affordable Care Act, in the first year the effort was to pass
legislation, but the law passed in March 2010, before my arrival.
My sense is the project was really run out of the White House. After I
came, which was March 2011, it was a constant flow of decisions about the
Affordable Care Act, regulations that needed to be issued, and ultimately
lawsuits that needed to be defended. But in terms of my time there, I think the
locust of the decision-making was at the Department.
The White House had a very strong influence and we always knew they
were going to have to clear anything significant that we did. And the decisions
would be made not only on the basis of the policy, but also on politics as well.
Remember that the Affordable Care Act was enacted in March of 2010 and then
18 months later, the midterm elections were held, the congressional elections in
the middle of a president’s term.
And, in the interim between the time it had been enacted and building up
to those elections, the ACA had become very, very controversial and the
Republicans and others had spent enormous sums of money attacking it. The
Tea Party was formed, and the Affordable Care Act was seen as just another
example of big government. It was a major issue in the 2010 midterm elections.
In those elections the Democrats lost 63 seats in the House and the House
flipped back to Republican. So we were facing aggressive oversight and the
inability to enact any legislation. The Democrats still had the Senate, which they
retained until 2014, year six into the Obama Administration.
Outside the Department, I attended many meetings at the White House
that often would convene between the three departments responsible for
administering the Affordable Care Act: Labor, Treasury, and Health and Human
Services. At some point Politico published a list of who attended the most
White House meetings in government and I was number five or six. This
reflected the fact that I was over there all the time — mostly on the Affordable
Care Act but also on Medicaid, Medicare issues, occasionally Food and Drug
Administration issues, sometimes ethics issues, and so on. The other locust was
with the Department of Justice, which was in charge of all our litigation.
Mr. Pollak: Under Attorney General Holder?
Mr. Schultz: Yes, and the Solicitor General. When I came, it was Acting Solicitor General
Neal Katyal, and then Don Verrilli became Solicitor General. My interactions
were mostly with the Solicitor General’s Office and to some extent with Civil
Appellate, the division I had run at the end of the Clinton Administration. A lot
of those discussions were about litigation, but sometimes we would go to them
for advice –pre-litigation advice.
Mr. Pollak: Well, how did you spend your time as General Counsel? Who was your
secretary? Identify the range of issues you were asked to deal with and how you
preserved your records and what ones you didn’t preserve.
Mr. Schultz: I had a wonderful secretary. Her name was Samantha Austin. When I started,
like most of our secretaries, she was under contract. This was something that the
Republican Administration had done, so one of the first things I asked her was
whether she wanted to be a government employee, and she did. I was able (with
some trouble) to make that conversion. She was very loyal, very capable, and is
a wonderful person.
I think I mentioned this, but early on I set up monthly meetings with the
ten Associate General Counsels, and she attended all those meetings. I wanted
her to be a part of everything I did. And then in addition to that, I had weekly
meetings with all my deputies at lunch, and she came to all of those as well.
What you find when you work in this kind of government job is that your days
are consumed with meetings. In those days, they were mostly in person. Today
I think it’s Zoom calls, but many of the meetings are in the Department, and as I
mentioned some were at the White House or the Justice Department.
It’s a struggle to find time to actually read and to think about things. So
you have to give in during the weekday hours of 10-4 or 10-5. Those times are
consumed by meetings or crises. I would arrive at work between 7:30 and 8:00
a.m., and I would try to block out on that schedule any meetings until 10:00 a.m.
I was often successful with that. I had those hours to do what I call real work.
There was parking in the basement, and frequently I would ride my bike
to work. My office included a large space with a conference table in the main
office, a separate conference table and library, and a bathroom with a shower. I
could ride my bike to work and take a shower, put on a suit, and start the day.
After 5 p.m. there was time for reading and writing. Typically, I’d leave around
8 p.m., but I would also often work at home. I also worked every hour that I
could on the weekends. It was a job where you had to satisfy your personal
obligations, but other than that you spent every free hour you could working.
The work was endless.
The range of issues was wide. I talked a lot about the Affordable Care
Act because that was the central mission of the Department. I oversaw the ethics
lawyers for the Department, and we had periodic ethics issues; we had personnel
issues both within my office (we had 500 lawyers) and outside. One example
involved the special pay scale that had been discovered and applied to scientists
within the Department. It applied to the National Institutes of Health, FDA, and
other divisions. It was called Title 42, and it allowed going far above the
government pay scale so that there were a few scientists in the Department
making as much as $400,000 a year.
Mr. Pollak: And the Deputy Secretary made what?
Mr. Schultz: Less than $200,000 annually. The problem was NIH had classified ministers,
janitors, all sorts of people in this pay scale and they were being paid above what
the government salary would have been. While you could make the argument for
a scientist, we were at risk of losing the entire program. That is just one
example of the kind of problems the General Counsel has to address, and you
can end up spending a lot of time on them.
It was not just the legal issue; it was also a political issue. I worried
about how the Hill was going to react; how to present it with a Director of NIH
(who was pretty defensive and wanted to hold on to what he had), but we
worked through it. I think in this case it was Francis Collins, the head of NIH,
and Bill Corr, HHS Deputy Secretary, who was very involved. All the legislative
people would be involved and we’d work through it. That’s just an example.
There were other ethics issues that would come up. For example, one
Assistant Secretary came to the government from academia. There is a provision
in law that if you have to sell a stock holding because you have a conflict of
interest, there is a way you can sell it and purchase a mutual fund or some
holding that doesn’t have a conflict and avoid paying the capital gains tax. The
basis would be transferred to the new stock or bond, but under the rules you
can’t do that until after you take office. One Assistant Secretary was extremely
conscientious, and he made the sale before he took office. This meant under the
strict rule he wasn’t entitled to escape the capital gains tax. Under the law the
White House could make an exception, so I asked Secretary Burwell to ask the
White House for the exception, which would have shown real loyalty to the
Assistant Secretary. But Secretary Burwell didn’t want to do it, so I couldn’t find
a way around his having to pay the capital gains tax.
There was a tricky issue involving Secretary Sebelius. Under the Hatch
Act, the Secretary could support political candidates in her own name but not as
Secretary. She made a mistake in a speech she was giving in North Carolina,
which caused a referral by a hostile member of Congress and a high-profile
investigation by the Office of Special Counsel.
Mr. Pollak: And how did Secretary Sebelius know before you were in office not only to
want you but to hold that office open for you?
Mr. Schultz: I don’t know that I know the answer to that. I had worked very closely with
Mark Childress and Bill Corr. I know they both highly recommended me to her.
I think other people did as well and then I interviewed with her. After we had
worked together, I think she came to have faith in me.
Mr. Pollak: So, identify, one by one, other problems that the General Counsel confronted in
your time. Starting perhaps with the Medicare billing data issues.
Mr. Schultz: Sure. I made a list of a few, just to convey a rough sense of the work. These
types of issues come at the General Counsel every day. One example involved
Medicare, which had a lot of data about what doctors charged Medicare and for
what kinds of surgery or medical procedures they charged. And when you
looked at the data there was a wide variation of doctors about whether they did
surgery, or when they did them, how much they charged, and other data points.
Reporters from The Wall Street Journal had filed a Freedom of Information Act
requesting the data. They didn’t want to know the names of doctors, but they
wanted to see the patterns within different parts of the country. There had been
a case that was brought maybe 20 years before. Whoever brought it received
some data and there may have been a court order and some other resolution.
Now The Wall Street Journal reporters wanted to open up the agreement. The
government, up until my tenure, always resisted this.
The lawyer for the Justice Department, Leonard Schaitman, had litigated
this case 20 years before and negotiated the settlement that protected all the data.
He was still there and was adamantly opposed to releasing the data. I went to the
head of CMS, the Medicare agency, and said, “What do you want to do? The
WSJ wants this data.” I think the lawyer for the WSJ had called me about it, and
given my Nader background, I’m very favorable of the government releasing
this information. I asked what the HHS position should be.
Don Berwick was about to leave, and he said, “I guess I should leave
this to Marilyn Tavenner,” who was going to take his place as CMS
administrator. I went to Marilyn, who said she wasn’t really interested in
releasing the data, and then Don came back to me because he was still head of
the agency and said he had second thoughts.
Don was a visionary. He understood the big picture. He said, “You
know what, I changed my mind. I do want to make this decision and I want you
to push for this.” He understood that this wasn’t just about the WSJ dinging
doctors and saying, “Look at this disparity in surgeries for this exact same
condition and look at what this means about medical practices.” That was the
article they wanted to write. But Don said it’s also about the fact that if doctors
see what other doctors are doing, it’s going to favorably affect medical practice.
This is really important.
I now had to convince the leadership of the Department of Justice to
basically overrule this career lawyer, which is not an easy thing to do and not a
thing you want to do very often. But I did and we reached an agreement with the
lawyer for the WSJ and the data was released. I think they won a Pulitzer prize
for it. It was a fun project.
Another example concerned the Innovation Center. The Affordable
Care Act set up a lot of programs, one of which was a program that was given
$10B over ten years to fund innovation in Medicaid and Medicare. Under the
law, they had the authority to waive Medicare and Medicaid requirements. So,
for example, under Medicare the general requirement was that medical
procedures be paid per procedure. If you get a hip replacement, Medicare pays
separately for the implant, the anesthesia, and the physical therapy afterwards.
The Innovation Center could adopt a test program that waived all of that and
instead adopts what’s called a bundled payment. Medicare would make one
payment for the entire package of the procedure. The Innovation Center would
do an experiment and see whether this saves Medicare money and what the
impact is on medical care. If it’s a success, Medicare can adopt a regulation that
makes it universal.
Early on the decision had been made by the Office of the General
Counsel that these were contracts, so when this money was given out, it was
given as a contract to the doctors, or hospitals, or other providers. Don Berwick
came to me and said, can you revisit this? He said the government contracting
procedures are extremely onerous. He asked whether there was a way this can be
viewed as a grant, which would be much better in terms of the operation of the
program. I worked with David Cade, the Deputy in charge of overseeing the
General Law Division, and Jeff Davis, who was in charge of the division.
You’ll find out very early on in one of these government positions that
just because you disagree or want to do something or think you have a legal
theory, it doesn’t mean that it can be imposed on others who disagree, even if
they report to you. You can do that, but you’ll never be effective if you take that
approach as a matter of course. The better approach is to convince your
colleagues to come around to your way of thinking – to get them on board. This
was a time when I disagreed with the experts who really should know a lot more
about grants and contracts than I did. But we talked it through, and I was able to
convince them to change their opinion so that this could be a grant program
instead of a contract program.
And I have to say, I found the lawyers at the Office of General Counsel
were terrific lawyers. There were times, though, when their thinking was pretty
narrow. Fortunately, they were willing to rethink things. Sometimes I would
convince them, sometimes they convinced me, but it was important to me to
know that I had their support. To know that they thought my interpretation, even
if they disagreed, was a reasonable interpretation. Sometimes we just didn’t get
there, and it would be a rare case in that instance where I didn’t defer. So, it was
always extremely important to get their support.
Mr. Pollak: How – given the time available and the pressures of your work – how did you
have enough background on these many issues to put a stake in the ground and
disagree with the experts?
Mr. Schultz: That’s great question.
Mr. Pollak: Is some of that what attracted the Secretary to you; an innate ability, on a limited
amount of information, on the judgment of people’s recommendations, for you
to make the right decision?
Mr. Schultz: I don’t know. And there were certainly times when I just didn’t have the
background and I had no choice but to defer. I had five terrific Deputies and
they were doing the same thing I was doing, but they had more time to gain
expertise in their areas.
Mr. Pollak: How did you have enough confidence to work your way – or to give way? That
was a major requirement.
Mr. Schultz: I don’t really have an answer to that question except I had had a range of
experiences inside and outside government, and that I had excellent Deputies,
Associate General Counsels, and other lawyers to work with and to learn from.
Mr. Pollak: You may not finish this today, but what about sticking your nose in the tobacco
and e-cigarettes, and what the Department’s and General Counsel’s role in your
time with those fundamental issues was.
Mr. Schultz: Sure, and it may not take much time. First, I’ll talk a little about the FDA. The
typical Secretary doesn’t have the time to engage much on FDA issues. In the
case of Secretary Sebelius, she was occupied with the Affordable Care Act and
Medicaid and Medicare, unaccompanied minors, and all the crises. And
typically, General Counsels don’t get involved in FDA issues because it’s a
complicated area of law that they don’t have time to learn.
My time was different because three of us in my office had deep FDA
experience. I did; David Horowitz, my Deputy who oversaw FDA; and Peggy
Dotzel, my Deputy who oversaw other things who also did pieces of FDA. And
so, we were more involved typically, which meant we could be very supportive,
and we could raise questions. In terms of tobacco, the two big issues were
menthol cigarettes and e-cigarettes.
Mr. Pollak: Issues in terms of banning them or. . . .
Mr. Schultz: For menthol, the issue was whether menthol cigarettes should be banned. When
the Tobacco Control Act was passed all flavors were banned except for menthol.
But FDA was explicitly given the authority to ban menthol after a regulatory
process. And so this process had started. It was difficult because maybe a third
of all cigarettes are menthol and they were disproportionately purchased by the
African American community. At times there have been many African American
members of Congress who opposed the menthol ban, many of whom get money
from the tobacco industry. It’s a hugely controversial issue. Suffice it to say
there were meetings about this, and I don’t think FDA did a very good job. But
it was put on the back burner and we in the Obama Administration had an
opportunity to make progress.
Mitch Zeller, who was later made director of the tobacco program at
FDA, took this on as part of his mission, and now progress is being made. The
Biden Administration has initiated the process of banning menthol cigarettes and
it might actually happen.
E-cigarettes raised difficult legal issues because when the Tobacco
Control Act was passed, e-cigarettes were not contemplated. E-cigarettes are
electronic cigarettes. They look like a cigarette. You get nicotine from them, but
there is no burning tobacco. There are reasons to believe that they are safer than
tobacco because a lot of the diseases from smoking come from the burning
tobacco and its byproducts that enter your lungs.
On the other hand, there is good reason to think that e-cigarettes pose
health risks to non-smokers. When the Tobacco Control Act was passed,
Congress essentially grandfathered cigarettes and cigars and tobacco products on
the market and provided for a process where minor changes in flavors or other
ingredients were permitted. But new products were prohibited until they had
been approved by FDA.
Another legal nuance was that the Tobacco Control Act only gave FDA
the authority to regulate cigarettes and smokeless tobacco products. To gain
jurisdiction over other products, it had to issue a regulation. So, initially FDA
didn’t even have jurisdiction over e-cigarettes. But when they were going
through the process of issuing this big regulation, they did the research and
realized they did not have a basis to grandfather e-cigarettes. This meant that if
they were going to declare jurisdiction over e-cigarettes, they had no authority to
allow them to remain on the market without an approved application. This
became a difficult challenge.
We and FDA decided to use enforcement discretion to allow e-cigarettes
to remain on the market for a period of time. During this period, the
manufacturers would be required to do studies to identify the risks to children,
and the benefits to adults switching to e-cigarettes from regular cigarettes. But
there was an important debate about how long a time the industry ought to be
given to come into compliance. This was a complicated issue because Mitch
Zeller, who was the head of the Center for Tobacco, had a strategy. His ultimate
goal was to ban all nicotine and cigarettes and switch all smokers to nicotine
replacement products, and e-cigarettes seem like the most attractive option. That
strategy would not work if e-cigarettes were banned. I don’t remember the
numbers, but he proposed to leave e-cigarettes on the market for a long time – I
think two years or more. He also had a proposal to ban nicotine in cigarettes,
and his idea was that smokers could transition to e-cigarettes.
Bill Corr and I talked about this, and we had a different view. Bill had
been very involved in tobacco during the Clinton Administration and had been
the Executive Director of the Campaign for Tobacco-Free Kids during the Bush
Administration, so he had deep tobacco experience. Our view was that any kind
of ban on nicotine in the near term was politically impossible and completely
unrealistic: it wasn’t going to happen.
When you put that issue aside the question is, how long can you leave ecigarettes
on the market? And we were very concerned that the longer you
allowed them to be marketed the bigger this industry was going to grow, and the
harder it would be ever to do anything about a potentially serious public health
problem. This was an issue that was ultimately presented to HHS Secretary
Sylvia Burwell, and she ended up deferring to FDA. I think in part because she
didn’t know what the initial reaction would be on Capitol Hill, and in part
because Secretaries usually defer to FDA. So the Obama Administration put
that longer ban in place. I was opposed to it, but I had no decision-making role.
When the Trump Administration came in, Mitch Zeller convinced FDA
Commissioner Scott Gottlieb to extend the enforcement discretion. When the
extension was announced, it was also announced that FDA would begin the
process of banning nicotine. That of course went nowhere, and the sales
ballooned out of control. Now the agency is still grappling with the legacy of
those decisions.
Mr. Pollak: So even though you were talking about accomplishing something in the last
years of the Obama Administration, it then gets past the end of that
administration, four years of Trump, and a year-plus of Biden, and nothing has
been done?
Mr. Schultz: Under Biden, FDA has started the process to eliminate menthol. Juul Labs, the
biggest producer of e-cigarettes that ended up addicting millions of kids,
ultimately voluntarily eliminated flavors, so there has been some progress. The
real issue with e-cigarettes is the flavor, and that’s what attracts kids. There are
still thousands of flavored products on the market, including liquid vaping
products, but FDA is finally making some decisions. Not the happiest story.
This is the twelfth and final in a series of interviews of William B. Schultz conducted by Stephen
J. Pollak on behalf of the Oral History Project of the District of Columbia Circuit. This interview
was conducted on Friday, June 17, 2022, in Washington, D.C.
Mr. Pollak: Bill welcome to this interview. Are we ready to begin or do you have anything
to say as a preamble?
Mr. Schultz: Let me add something just from the last interview, and then we should start with
the Affordable Care Act. Throughout my time at HHS the issue of emails and
record keeping was central since during the Obama years the use of emails and
texts increased significantly. This raised questions about how the Federal
Records Act applied. That statute was written for paper records, but it was very
clear by the time I was there that the office in charge of that Act viewed emails
as records. My challenge was to get the officials at HHS, and I was particularly
concerned with the political appointees, to write official emails on the HHS
server. They and others had become accustomed to using Google’s Gmail and
personal email for both personal and work matters. Periodically at our meetings
with the Secretary and all the political appointees I reminded people that they
needed to use their HHS email address. If they got a business email on their
personal email, they should forward it to the HHS server. I stressed that if you
don’t do that, the risk is that during Congressional oversight you will be asked
for emails, and when it’s learned that you’re using your personal email for
business they are going to ask for everything from your personal email server.
That’s not really a very satisfactory place to be.
I think it was generally successful, but I was amused at one point when
Secretary Burwell, who came during the last two years of the Obama
Administration and during the beginning of the controversy as Hillary Clinton’s
use of her personal email server for business became a huge issue, said, “Well, I
thought maybe it was overkill, all the warnings about using personal email, but I
now understand the wisdom in what you were saying.”
Mr. Pollak: How many people whom you counseled do you think followed the course that
Secretary Burwell followed?
Mr. Schultz: I think ultimately, they all did. Early on there were some that were very sloppy
about this because I would get emails from their personal email and ask them to
use their HHS email address.
Mr. Pollak: Bill, we are turning now to what became known as the Affordable Care Act. I
want to ask you to identify the official name of that statute and then to speak
generally about your role as General Counsel of HHS in establishing the
program. And if there is anything more you want to say about getting the
legislation adopted by the Congress which you touched on you should include
that. I understand that you will be initially touching high points and expecting
me to have follow up questions as needed.
Mr. Schultz: The full name was the Patient Protection and Affordable Care Act. I don’t have
anything more to say about the legislation, I wasn’t there for that. HHS was
involved and my Deputy Ken Choe was very involved. I gave advice from the
outside on legal issues, but the effort was largely led by the White House. After
the act was passed, they turned the principal responsibility for implementing it
over to the Department while staying very interested, very involved, and often
very helpful.
The General Counsel’s office had two basic roles. One was to provide
legal advice in issuing regulations and the other was to participate in the
litigation challenging the Affordable Care Act. The statute, as you can imagine,
required a complex series of regulations because essentially it was insurance
reform. The Department very quickly had to issue regulations that involved a lot
of decisions about what the statute allowed. We were constantly making legal
decisions and there was no case law to rely on in interpreting the statute. There
was obviously case law on administrative procedure that was critical to the
entire effort in interpreting the statute, and we had to think about both legal
challenges in the courts and the Congressional reaction.
One example of a controversial issue we had to address was the ACA
provision on contraceptive services. Under the new law, almost all insurance
plans, whether they are covered by the act or not, had to provide contraception
coverage and related services, but not abortion coverage.
There were a number of very serious issues about how those revisions
would apply to religious employers and other employers who had religious
objections, and there was a real division within the Administration, within the
White House, about this. At times, it seemed as though the division was
between the Catholic men, who were sympathetic to the religious position of the
church and businesses, and the women who were leaders in these various
positions and favored provisions designed make contraceptive services available,
and so we had a lot of compromises to make in the administration. There were
probably 50 lawsuits brought up around the county challenging these provisions
that ultimately went to the Supreme Court, which issued a 5-4 decision against
our interpretation.
Another tricky issue was coverage for members of Congress. The statute
was written to move members of Congress from their government-sponsored
healthcare plans to plans under the Affordable Care Act. Interestingly,
congressional staff, I believe it was the Senate Finance Committee staff,
included a provision exempting staff so staff would stay on the more favorable
government healthcare plan. But the Senators and representatives had to go to
the exchanges established under the statute.
As you can imagine many were very upset and they wanted a way around
this. Fortunately, the issue of whether the statute could be interpreted to
preserve members’ health insurance didn’t come to HHS. It went to the Office of
Personnel Management, which had jurisdiction over this particular issue. OPM
managed to find a way for members of Congress to be covered by the
government healthcare plan, and it was a decision that wasn’t challenged in
court because no one was complaining.
Another difficult issue had to do with the availability of cost sharing
under the Affordable Care Act.
The Affordable Care Act had provisions where if you bought insurance
from the exchange, for people who qualified on the basis of income there were
premium subsidies and cost sharing subsidies to assist with paying co-pays.
Unfortunately, there was a very serious question about whether there had been a
congressional appropriation for that provision and it was one that the insurance
companies had not focused on. They had all signed up and it was clear under the
statute that the insurance companies would have to provide the cost-sharing,
whether the government paid them or not.
Running up to the launch of the ACA, this was an issue that could have
tremendous impact on the participation of the insurance companies in the
program. This was more within the jurisdiction of the Treasury Department than
HHS, but it was a wrenching process to work out that involved multiple
meetings convened by Dennis McDonough, the President’s Chief of Staff,
Secretary of Treasury Jack Lew, Secretary of HHS Kathleen Sebelius, in some
cases Attorney General Eric Holder, Solicitor General Don Verrilli, General
Counsel of the Treasury Chris Mead, and myself. It took three or four meetings
to get to a resolution, an agreement. But ultimately Jack Lew, over the objection
of his General Counsel, signed off on making this money available, which was a
huge relief to everybody.
Later, the decision was challenged, and we lost in the District Court.
When the Trump Administration came in, they didn’t appeal the loss. But the
cost sharing issue was not a barrier to the launch of the ACA which could have
been devastating.
Mr. Pollak: Who chaired these meetings on this topic?
Mr. Schultz: Chief of Staff Dennis McDonough. His job was to get the issue resolved in a
way that would allow the subsidies. He was successful and very, very skilled.
There were many other issues. They didn’t all come to me, but I think
the staff was very good at identifying the ones I ought to be involved in
deciding. It was a huge number.
Mr. Pollak How did you inform yourself? Would you have meetings and a group of you go,
or what were the mechanics?
Mr. Schultz: Typically, we would sit at the conference table in my office with Ken Choe, my
Deputy for CMS and the Affordable Care Act, and various other people,
sometimes a large group. My goal is always to reach an agreement. Sometimes I
had one view and I would spend time to see if I convinced my staff or they could
convince me. I think we usually ended up agreeing, or at least with everybody
feeling comfortable with the decision.
Mr. Pollak: You and your staff were interacting at the time with people outside your office.
Mr. Schultz: No, initially we were formulating the position of the Office of General Counsel.
Then we would communicate that to the program and in some cases, we would
communicate that to the White House if they were interested. Sometimes they
were not happy with what we were deciding, and they would push back. We
would have meetings with them and explain our position. I occasionally
changed their mind, but not too often. They understood that we had the final
If Secretary Sebelius was interested in the issue, I would explain it to her.
I should mention that technically the Secretary was the final decision-maker, so
she could overrule the General Counsel on a legal decision if she disagreed. But
that never happened in my tenure. The White House, on the other hand, had a
lot of very bright lawyers. Many of them really didn’t know this area. But the
White House never wanted to be out front, so they never wanted to own the
decision. They always wanted us to be accountable for any legal decision.
Mr. Pollak: Was that a good thing?
Mr. Schultz: Yes, I think so. I think it was because we tried to adhere to the law. Consistent
with what is my philosophy, that our job was to figure out what the law was,
what the best reading was, what were defensible readings, and what were the
risks of going through those readings and explaining that to the client and
making a recommendation. That’s the way we always tried to do it. In many
cases the client might have wanted to do something, and maybe there were a lot
of legal risks, but we could identify a different way to accomplish the same
result. And to me that’s the best lawyering that a government lawyer or
institutional lawyer can provide.
Mr. Pollak: Tell us your view and high points of the litigation that ensued over the
Affordable Care Act, over the regs that were issued, and your role and how it
came out.
Mr. Schultz: I should say up front, if I haven’t mentioned it, that I felt very strongly that we
should in general be conservative in our interpretations because we didn’t want
to get a reputation with the courts of playing fast and loose with the statute. As I
mentioned, we ultimately lost the contraceptive cases 5-4 in the Supreme Court,
but I believe as to other issues we were very, very successful.
On one issue, we adopted an interpretation that made some of my friends
in the civil rights community unhappy. There was a civil rights provision in the
Affordable Care Act, section 1557, that everyone agreed was very poorly
drafted. It was a single paragraph put in the Senate bill at the last minute as a
placeholder. That paragraph referred to several other statutes and the
assumption was that it would get worked out in the House bill and in conference.
As I’ve mentioned, because of the Massachusetts Senate election that occurred
after the Senate bill was passed, there were only 59 Democratic senators left, and
because of the filibuster, a revised bill could not pass in the Senate. So the
original bill that the Senate passed before it lost its 60-vote majority had to be
passed by the House, which included the poorly drafted placeholder civil rights
provision, and that is the version of the ACA that the President signed. As a
result, the civil rights community knew exactly what was intended, but
unfortunately that differed from what was written on paper.
Mr. Pollak: And what was intended in the original?
Mr. Schultz: I think it’s too complicated to get into, but it had to do with civil rights
protections with regard to the provision of healthcare plans and non351
discrimination plans, and it carried out in a whole lot of areas. There were a lot
of difficult conversations, but I think everybody respected where we were, and
sometimes we found a way to go further than where we started.
Mr. Pollak: You didn’t tell what happened in the litigation over that poorly drafted civil
rights provision. Was it struck down and HHS didn’t appeal?
Mr. Schultz: No. There are many aspects of it but there was one issue about how it applied to
transgender patients that I think was struck down during the Trump
Administration. None of it was struck down when I was there and I think most
of our interpretations survived.
Mr. Pollak: What about other litigations?
Mr. Schultz: The big case was NFIB v. Sebelius,21 which was the culmination of a number of
early challenges to the Affordable Care Act based on the Commerce Clause.
Every piece of legislation that Congress enacts must be tied to a provision in the
Constitution. If it’s a tax bill, there’s a taxing clause in the Constitution. If it’s a
civil rights bill, it may be based on the Fourteenth Amendment. But most
regulatory legislation and even some civil rights legislation is based on the
Commerce Clause – the ability of Congress to regulate commerce between the
states. This was the Constitutional basis for the Affordable Care Act.
After the statute was enacted, there were half a dozen or more court
challenges across the country arguing that Congress could not force people to
buy health insurance. There was no question that Congress can regulate
21 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).
insurance and that’s clearly commerce, but for the Affordable Care Act to work
there had to be a strong incentive for healthy people to buy insurance in order to
create a larger pool of people paying premiums and allocate the risk and costs
among a greater number of people. Without that incentive only sick people
would buy insurance and healthy people would wait until they became sick,
increasing the cost of coverage overall. The Affordable Care Act guaranteed
that everybody could get insurance, regardless of employment or health status.
It took away the insurance companies’ ability to look at how sick somebody was
and evaluate health in pricing an individual’s insurance. The argument opposing
the ACA penalty was that the Commerce Clause did not support the penalty
assessed when someone didn’t purchase insurance.
Most scholars and other experts who are familiar with this kind of
litigation thought these cases were very weak and had little chance of success.
But when we began receiving decisions from the courts of appeals, we realized
we had a more serious problem than we thought. The appellate courts were
split. We lost in the Fifth Circuit, and we won in the D. C. Circuit. The Fourth
Circuit found a way not to decide the case. I went to a number of these
arguments and I was very involved in helping frame the arguments in courts.
Ultimately the case went to the Supreme Court and again the experts were all
predicting we would win easily.
Mr. Pollak: What was the style of the case?
Mr. Schultz: NFIB v. Sebelius. This was such a big case that the Supreme Court divided the
oral argument into four separate sessions. Typically, an argument in the
Supreme Court is an hour, and in this case they divided it into four arguments,
an hour each, over two days.
Mr. Pollak: Who argued?
Mr. Schultz: Don Verrilli argued the main parts of the case. I think Don argued the
jurisdictional issue on the first day; the key Commerce Clause issue on the
second day; and an issue about severability the fourth day. The severability
issue was whether, if part of the statute was determined to be unconstitutional,
the entire statute would fail, or just the unconstitutional portion. Ed Kneedler, a
Deputy Solicitor General, argued the Medicaid issue on day three. Paul Clement
argued for NFIB and I think he did every argument.
I went to the argument with Secretary Sebelius. We were able to drive
into the parking lot of the Supreme Court and go up an elevator and I ended up
sitting between her and Attorney General Eric Holder. Tickets for the argument
were very precious and it was full of members of the House and Senate, people
from the administrations and so on. We went each day and saw the entire
The day jurisdiction was argued, the Court wasn’t very interested, so it
seemed clear they were going to decide merits. When it got to the key argument
on the mandate, it was clear we had some problems. Don Verrilli paused at the
beginning of the argument; he may have gotten something caught in his throat,
every oral advocate’s nightmare. But once he got going, he did well. The
problem was that too many of the Justices seemed skeptical.
The reviews of the argument were devastating. After the argument,
Jeffrey Toobin, a CNN commentator, ran out of the courtroom, ran to his
network, got on camera, and described Don’s argument as a “train wreck.”
Kathleen and I went back to the Department after the last argument and
everybody had heard how discouraging it was. We had a meeting of hundreds of
people from the Department that were interested, and she gave her impressions.
Then I told a story intended to convey some hope.
Years before I had written an amicus brief in the Supreme Court in Motor
Vehicle Manufacturers Association v. State Farm,22 a challenge to the Reagan
Administration’s decision to revoke the airbag rule that had been issued by the
Carter Administration. The rule requires that over a period of time cars be
equipped with airbags.
The automobile insurance industry, which likes airbags because airbags
saved them money by saving lives, challenged the administration’s decision,
won at the D.C. Circuit, and then the Supreme Court accepted the case for
I attended the argument and came out of the argument convinced that the
insurance companies, whom we had supported, would lose 9-0. It didn’t seem a
single Justice was interested in overturning this decision by the Reagan
22 Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29 (1983).
Administration, which would have required the Supreme Court to find that the
decision to rescind the airbag rule was arbitrary and capricious. In those days, it
was very rare for a court to invalidate an agency decision on those grounds.
As I told the assembled group at HHS, when the decision came out
months later it was 9-0 against the Reagan Administration. Exactly the opposite
of what I had thought, and other people who saw the argument thought the same
thing. Years later, when I was in the Justice Department, I talked about the case
with a friend of mine with whom I was working and who had clerked on the
Supreme Court at the time of the State Farm decision. I told him the story and I
said, “I was just always baffled at what happened there.” And he said, “Well,
you were right.” After each argument session, the Justices have a conference
and go over each case and take an initial vote. He said the initial vote on State
Farm was 9-0 in favor of the Reagan Administration and the case was assigned
to Justice White, who was going to write an opinion upholding the Reagan
Administration’s decision.
Justice White started writing the opinion and reading the record, and he
became convinced that the rule was arbitrary and capricious. He wrote the
opinion with that holding, circulated it, and every other Justice signed onto it.
That’s how the case went from 9-0 in one direction to 9-0 in the other. I told this
story in our meeting to say that you never know what’s going to happen after an
argument. Even if what happens at the argument is an indication of where the
Justices were at that time, they can always change their minds, and sometimes
they do.
In fact, that appears to be what happened in our case. We had three or
four months of anxiety and I spent a lot of time with my friend Mark Childress,
who was working at the White House preparing for what we would do if we lost
and what kind of measures President Obama could take to minimize the damage.
There was, of course, the possibility that we would lose the constitutional
argument and lose on severability, in which case the entire statute would fall.
There were many permutations, and we spent a lot of time working on them,
what were we going to do if we lost, and this was all happening the summer
before the 2012 presidential election.
It was believed that this decision would have a big impact on whether
President Obama won a second term. I’m sure Don Verrilli was anxious
because he was going to be blamed for the loss.
The announcement of the decision was also dramatic. Usually, the public
has no information on when a Supreme Court decision is going to come out. But
the Court traditionally saves the biggest cases’ decisions for the end of the term,
and it usually saves the biggest case for the last day. They do tell you when the
last day will occur, and often they will decide in every case except for the
biggest case before the last day. So, we knew what day this decision was going
to be released.
When the Court convened at 10 a.m., a group of us gathered in my office.
Deputy Secretary Bill Corr was there, as were my deputies, other HHS lawyers,
and various other officials from the Department. Chief Justice John Roberts
began reading his summary of the decision. The press was at the Court outside
the courtroom. At some point the clerk’s office releases the decision, the press
runs and gets the opinion, and then the reporters rush through the decision and
compete to be the first to announce the decision to the public.
Also relevant is the website SCOTUS Blog that reports on everything the
Supreme Court does. We knew they would be one of the first to report on this
decision and in fact they purchased extra computer capacity because they knew
their traffic would be extremely heavy that day. We knew that CNN and other
TV outlets would report on it.
We had a lawyer from HHS at the court in a side office the Solicitor
General has so she could hear the Justices’ summary of the case and report to us
by email what was being said in the courtroom.
I made the decision that in my office we were not going to watch TV
because I had seen the experience in the Bush v. Gore presidential election when
the Supreme Court case decided that George Bush was the President over Al
Gore. When that decision came out, the TV reporters read it too quickly, and
they reported that Gore had won the case. Only five minutes or so later, they
had to correct themselves to say Bush won. So, I said to those gathered in my
office that we’re not going to watch TV. We’ll watch the SCOTUS Blog and
look at what our colleague is saying.
As it turned out, Chief Justice Roberts, who wrote the majority opinion,
read the summary so that it was necessary to wait to hear the actual decision. He
started with jurisdiction. He said the Court had jurisdiction, and then he got to
the issue of the mandate. He first talked about the Commerce Clause and said
that the Commerce Clause could not support upholding the mandate, rejecting
the government’s main argument that the ACA was constitutional.
At that point, CNN reported the President had lost the case. I later learned that
during all this President Obama was leaving a meeting, and as he walked down
the hall, he walked by a TV and saw the report that he had lost the case. He then
went to his office, I suppose, to grieve, and to begin to think about what’s next.
We were oblivious to that report and we were watching the SCOTUS
Blog, which had by this point gotten the opinion. Because they were concerned
about making a mistake, they had adopted an arrangement where they had two
separate lawyers reading the opinion, and they were not going to report anything
until both lawyers agreed on what it said. After Chief Justice Roberts got
through the Commerce Clause, there was a second argument that this mandate
could be upheld under the taxing power of the Constitution. He found that the
penalty was really a tax, which made sense since it was a penalty that people
identified on their tax forms and paid with their taxes. It is an argument the
government made that one or two judges in the lower courts accepted. It had
been seen as a difficult argument because the ACA’s legislative history said over
and over this is not a tax. Taxes are very unpopular, and it was said not to be a
tax. But Justice Roberts decided it qualified as a tax, so he upheld the statute on
that basis.
This was a real vindication of Don Verrilli, who spent ten minutes of his
oral argument arguing the tax issues, something he was roundly criticized for by
Jeffrey Toobin and other commentators, but a decision that turned out to be
absolutely right. It was a great victory.
There was another aspect of the decision that was complicated. The
Affordable Care Act vastly expanded Medicaid beyond single mothers and
extremely poor people so that anyone earning under 133% of the poverty level
was eligible for Medicaid and 90-100% of that was paid for by the federal
government. This was a vast expansion of the program. Chief Justice Roberts
held that this was a violation of a different provision of the Constitution. Instead
of striking down the provision, the Court ruled that Medicaid could not be
expanded unless the individual state agreed. This was certainly a serious blow.
I think today almost 40 states have finally decided to accept Medicaid
expansion, but there are still states like Florida and Texas that have millions of
people without health insurance because of the decision.
Mr. Pollak: Wasn’t there follow-on major litigation on the constitutionality or legality of the
Affordable Care Act or the regs that was just as contentious?
Mr. Schultz: There was a second case that also went to the Supreme Court called King v.
Burwell.23 This was a case about the statute. The statute set up something called
an exchange, which is where people who are eligible for Medicaid can buy their
insurance under the Affordable Care Act, and it is also where they could get
subsidies. If you earn under four times the poverty level, you would get a
subsidy in the form of a tax credit. But the statute referred to the subsidies as
going through an exchange established by a state.
This case argued that the subsidy could only be given in connection with
insurance purchased at state exchanges. Most of the exchanges, it turned out,
were set up by the federal government. Congress felt that most states would
want to have control, but in the end the states didn’t. The argument was that only
those people who obtained their insurance through a state-based marketplace
were eligible for the subsidies or tax credits. This would be a serious blow to the
availability of subsidies since most people receiving them purchased their
insurance on the federal exchange.
That case also went to the Supreme Court and given the previous vote of
5-4, we were quite nervous about it. In the end we prevailed 6-3, the different
being that Justice Kennedy, who voted against us in the Commerce Clause case,
NFIB, voted in our favor in King v. Burwell. We escaped.
Before the decision, I had spent a lot of time trying to figure out how we
could have managed if we lost the case. This would have meant that subsidies
23 576 U.S. 473 (2015).
could only be given by the state exchanges, and at that time there were only
about ten. There were many, many meetings with the lawyers in the White
House, with the leaders in CMS trying to figure out whether we could quickly
set up these state exchanges, and in particular whether we could do them even if
the states didn’t want them. There was tremendous tension between the goals of
the lawyers, which were to survive legal challenges, and the goals of the policy
people, which were to get these exchanges set up as quickly as possible so
people could start getting subsidies. We struggled through that and did the best
we could. Fortunately, we never had to use that plan.
Mr. Pollak: What was your role generally in the cases?
Mr. Schultz: We reviewed all the briefs, and sometimes had significant comments on them.
We were involved in the major policy decisions that had been made in the briefs,
such as to what extent do you make the argument about the tax clause.
For example, in crafting the arguments about the severability of the
penalty, there were critical decisions about what provisions were so intertwined
with the penalty that they would have to fall if the penalty were declared
unconstitutional. As I said there were four arguments in the Supreme Court in
the first case, and that meant there were eight moot courts, so I was very
involved in all of those. The lead in the Supreme Court cases as always is the
Solicitor General’s Office, but we worked very closely with them.
Mr. Pollak: Did you personally write some of those briefs?
Mr. Schultz: Not the first drafts but I was very involved in editing the briefs.
Mr. Pollak: Let’s move to the launch of the implementation of the ACA, which you have
identified as October 1, 2013.
Mr. Schultz: After we won the key Supreme Court case, we still had to launch and manage
the program. The Affordable Care Act had become a very controversial
program and was disliked by large numbers of people. By the time we were
ready to launch, the White House communications staff was very reluctant about
ever having the President talk about it. But HHS wanted to get the word out so
people would know about the availability of tax credits and health insurance. As
it turned out, once this issue got to the President, he was in favor of doing
whatever he could to tell people that October 1, 2013, was going to be a very
important day when the Affordable Care Act launched.
The government’s budget authorization expired on that date, too, and the
government would have to be mostly shut down unless Congress passed a new
appropriation. Congress did not do that because the Republicans in the House
who opposed the Affordable Care Act wanted to use the budget as a way of
preventing the Administration from launching the program. On one side there
was a determination to launch it on October 1, and on the other side there was a
determination to block it.
The Administration stood its ground, and the program was successfully
launched on October 1. On that day, I came to my office but there were very
few people there because when there’s a government shutdown, only those
designated as ‘essential government employees’ can come to work. One of the
General Counsel’s responsibilities was to decide who in this huge Department
was essential and who wasn’t. We had been very occupied with those kinds of
decisions running up to October 1.
October 1 was a quiet day, and I sat at my desk and opened my computer.
I tried to go on the website for the exchange to see if I could go through the steps
to buy insurance. I had health insurance, but I just wanted to see how this was
working. I opened the website and went to the D.C. exchange and started the
process for purchasing insurance, but everything went blank. I couldn’t even get
into the D.C. website.
I called Bill Corr, who was the Deputy Secretary of HHS and a close
friend, and said, “I think there’s a problem because I can’t get into the website.”
And he said, “Well, we’re working on it. It’s something temporary.” But as it
turned out, the launch of the Affordable Care Act website was a disaster.
President Obama recently, in a speech, described it as the low point of his
It couldn’t have gone worse. This went on for a couple of months and I
remember being in airports during that time and I would look up at a TV screen
in the airport and the only thing I saw were stories about the catastrophic launch
of the Affordable Care Act. There were many efforts to try to figure out what
happened and why this happened, and in hindsight it was both understandable
and avoidable. We were clueless at the time, but some of the reviews later
showed that many key elements of the site were unfinished and just not ready to
be launched on October 1.
The other thing I’ll mention is that the Affordable Care Act was modeled
after a healthcare program that had been adopted in Massachusetts when Mitt
Romney was governor. That program had been seen as very successful, but it
had a similarly difficult launch. There was one key difference, which is in
Massachusetts relatively few people tried to sign up. There were months to sign
up and it didn’t get the same notoriety. I don’t know if we were even aware of
the problems in Massachusetts when we launched our program. In our case, the
President of the United States had been publicly encouraging people to go on the
website and something like a million people tried to sign on the first day. That
crush of traffic was a factor in crashing it but there were also very avoidable
It’s hard to know what would have happened if the Secretary and the
President and other key players had known how unfinished the website really
was and decided not to launch on October 1. It’s unclear as to what would have
happened or what Congress would have done or what we would have been able
to do. Ultimately, the White House sent Jeff Zients, who is now well-known as
the coordinator for the Biden coronavirus program, because he had a lot of
experience in management. He and a team of computer geniuses, who
volunteered to help, were detailed to the Department.
The first question Jeff and his team had to answer was could the website
be fixed or did we have to start over. He determined that it was fixable, and
early on the administration announced that it was going to be fixed by the end of
November, which took some pressure off. And in fact, by the end of November
it was operational. There were still improvements to be made, but it was
operational. Under the program, during the first year people had until April 1,
2014, to sign up, six months in. In the end, more than eight million people
signed up for insurance, a little bit more than was projected. I’m not sure we
lost a lot by the October disaster in terms of signups, but we lost a lot in terms of
the Department’s credibility and the President’s credibility.
Mr. Pollak: You say there were not consequences?
Mr. Schultz: In terms of people signing up, I don’t think there were. It had been projected by
the Congressional Budget Office that eight million people would sign up. I
think we thought that was optimistic, but in fact about eight and a half million
people signed up. I don’t know that people were deprived of insurance because
of this. The insurance wasn’t to become effective until January 1, 2014, but it
was a disaster.
Mr. Pollak: What was the follow-up?
Mr. Schultz: During this time, between the crash on October 1 and the closing of the
exchange for that year in April, there were regular meetings at the White House.
The President personally held meetings every two to three weeks asking for
detailed reports on progress; detailed reports on the numbers. They were led
initially by Chris Jennings, but he left pretty quickly. Chris was replaced by Phil
Schiliro, who had been Congressman Waxman’s Chief of Staff when I worked
on the Hill and then was President Obama’s legislative chief for the first two
years of the Administration. But the President was very engaged in these
meetings. He had lots of questions. The White House was determined that there
would be no surprises after the big surprise on October 1.
Mr. Pollak: Tell us when and what influence it had on your experience as General Counsel
of HHS when Secretary Sebelius left the Department.
Mr. Schultz: In April 2014, Kathleen Sebelius resigned as Secretary and was replaced by
Sylvia Burwell, who had been the director of Office of Management and Budget
and was someone who had the confidence of the White House. I had been
through other transitions at FDA when David Kessler left, and knew that in
government, transitions can be very anxiety-producing for many of the people
there. The main thing I did was to talk to my deputies and other people, to warn
them and tell them it’s something to get through. There’s a lot uncertainty.
I was very involved in preparing Sylvia Burwell for her confirmation
hearings, so I got to know her a little bit through that. My recollection is that she
was confirmed easily in June 2014.
Shortly after she began, in a meeting with her, I said, “Look, you get to
pick your own General Counsel and I understand that needs to be a close
relationship. It’s your choice.” She said she appreciated that and at some point
later she told me that she wanted me to stay. We always had a good working
She had a very different style and very different background from
Kathleen Sebelius. She did not have a political background. She did not have
much of a background dealing with the press, and she hadn’t ever managed such
a large organization; of course, few people have. She was very bright, very hard
working, very prepared for everything she did. Very responsive to Congress.
Mr. Pollak: Were there differences from Secretary Sebelius?
Mr. Schultz: She managed in a very different way. She was preoccupied with reserving
enough time so she could prepare, which left less time to meet with the
leadership in the Department. I always felt that I had access to her when I
needed it but she was less extroverted and more worried about her own
preparation and her own reading, and had less of an understanding of the
importance of the political side of things and media side of things. She had a
very good relationship with the White House. She replaced a lot of people in the
senior leadership of the Department.
Mr. Pollak: Did she have a family?
Mr. Schultz: Yes. She had a husband and two young children, but her husband stayed at
Mr. Pollak: Before she became OMB director, what was her line of employment? What was
her last position?
Mr. Schultz: Prior to entering the Obama Administration, she had been in charge of charity
programs for the Walmart Foundation. She previously worked at the Gates
Foundation, in the Clinton White House, and for McKinsey & Company. She
came from a small town in West Virginia, went to Harvard, was a Rhodes
Scholar. She was a person who had excelled at everything she had ever done.
Mr. Pollak: Thank you. So, you said she replaced a lot of people?
Mr. Schultz: Yes.
Mr. Pollak: How did she accomplish that and when, and what was your role?
Mr. Schultz: I had no role in it. She didn’t touch my office. She brought in two people whom
she had known for a long time and I had known for a long time. One was Kevin
Thurm, who had been the Deputy Secretary in the Clinton Administration and
who I worked very closely with there, and so it was a delight to have him back.
He was a senior counselor and he’s just first rate in every way. He was only
there for a year, but it was a total plus to work with him again.
The other was Leslie Dach, whom I had known early in our careers. He
had been at the Environmental Defense Fund. He then went on to a career in
consulting and public relations and ended up at Walmart, and Sylvia worked for
him at Walmart. He was brought in, really, to oversee press and outward-facing
matters. I think Kevin Thurm was brought in to do some of the management.
It was very uncomfortable for Bill Corr, who ultimately left. She then
appointed a new Deputy Secretary, Mary Wakefield, who never got confirmed.
Kevin did the policy piece and Leslie did the outward facing piece. Sylvia
replaced the Chief of Staff. She replaced some of the counselors. Ultimately,
the person in charge of press left. A lot of changes, kind of what you’d expect,
nevertheless producing the anxiety and uncertainty these kinds of transitions
always engender.
Mr. Pollak: Did you consider leaving?
Mr. Schultz: No, I wanted to stay to finish up what we had started and support the staff,
support my deputies. All but one of them stayed to the very end of the term. It
was remarkable, really. They all came with me or before me and with one
exception stayed all the way through, even past the time I left.
Mr. Pollak: When did you leave your position as General Counsel?
Mr. Schultz: June of 2016. I told Secretary Burwell several months before, and I
recommended that my Deputy, Peggy Dotzel, be named Acting General
Counsel, which Secretary Burwell agreed with. Ken Choe had left, and we
brought in another Deputy, Kate Heinzelman, who had been at the White House
Counsel’s Office and who was terrific.
Mr. Pollak: So, leaving at that time was a time of your selection?
Mr. Schultz: Yes.
Mr. Pollak: And why did you decide to leave?
Mr. Schultz: I stayed for two years of Sylvia’s term, but I decided that it would be great to
have the summer not working so I could spend time with Sari. I wanted to take
some time before I took another job. I could take the summer and the fall and
think about what I wanted to do. In addition to that, I also was very aware that
at the end of the administration in a presidential election year it’s hard to get
much done. If you lose the election, people try to jam things through after the
election. Generally, before presidential elections it’s hard to get things cleared
through the White House because of the potential political consequences. So it
seemed like a good time to leave even if people were kind of surprised.
Others in the government made the same decision, although I didn’t
know it when I made mine. Solicitor General Don Verrilli also left in June. We
ended up in Italy at the same time that summer, where we had dinner together.
Mr. Pollak: Had you had meaningful discussions with anybody about future employment
before leaving the government or before making your decision to leave?
Mr. Schultz: No. I just don’t believe it’s possible to do so and comply with the intent of the
ethics rules.
Mr. Pollak: How long were you without employment after leaving the government?
Mr. Schultz: I left in June of 2016 and I started at Zuckerman Spaeder in the middle of
Mr. Pollak: What did you do in those five months?
Mr. Schultz: Sari and I went to Italy for two weeks and then we spent the rest of the summer
in Nantucket. We bought a house in Nantucket in 2010 and we had barely used
it because most of that time I was in the government. We used it typically for
two weeks each summer and a few weekends, but this was a chance to spend
more time there.
Mr. Pollak: During that period before rejoining Zuckerman Spaeder, were you consulted by
HHS or anyone in the government?
Mr. Schultz: I may have been called about one or two things, but I don’t remember anything
significant. It’s important to make a clean break and I have to say I left my
office in terrific hands.
Mr. Pollak: Who ran it after you left?
Mr. Schultz: Peggy Dotzel was Acting General Counsel until the end of the Obama
Administration, and as I mentioned before, all the deputies stayed, which was
wonderful and made it much easier for me to leave.
Mr. Pollak: How did you come to move to Zuckerman Spaeder after leaving the Department
in 2016?
Mr. Schultz: Initially I didn’t think I would go back to the same firm. I thought I would do
something different, and so I talked to a number of other firms and had job
offers. But in talking to my friends at Zuckerman, I was really moved by how
much they wanted me to come back. I also thought a lot about the fact that
when I had been there before, I had always gotten to do what I wanted. I was
never asked to do something that I was uncomfortable with. I knew if I went to
a new firm I may not have that kind of flexibility and so I ended up deciding that
this was the right fit and it was absolutely the right decision.
Mr. Pollak: And did you return as a partner?
Mr. Schultz: Yes.
Mr. Pollak: Yes, and what have been the main areas of practice in which you engaged both
for pay and pro bono, if any?
Mr. Schultz: When I left there in 2011 my main practice involved Food and Drug
Administration issues, particularly generic drugs. I did a lot of litigation
representing the generics against FDA and the brands. I also did a considerable
amount of lobbying on the generic side and for various public interest groups
including the Campaign for Tobacco-Free Kids.
When I came back, part of the practice involved generic drugs. We
represent the trade association, and a very interesting company named
Amphastar. We have also done other projects for different companies and that is
one piece of it. We continue to represent the Campaign for Tobacco-Free Kids,
which is a paying client, although with some of our paying clients we don’t
charge for all the work we do. I continue to do that work. Now the big issue is
how to implement the tobacco law we worked to enact, and particularly how to
regulate e-cigarettes.
The practice has expanded to other kinds of healthcare clients. We do a
fair amount of work for individuals and for one non-profit involved with IG
investigations, that’s the Inspector General of the Department of Health and
Human Services. For example, we have represented researchers at the National
Institutes of Health, and we represent the National Organization for Rare
Disorders, which has programs financed by contributions from drug companies
to give away drugs to people with rare diseases.
We work for public interest groups, some of which are paying and
some of them are paying in part. We do a lot of work with the Waxman Group,
which was founded by Henry Waxman after he left Congress. They do a lot of
foundation-funded work on controlling drug prices; we have also filed briefs for
them before the Federal Circuit on generic drug issues. We represent various
small startups on issues at FDA or HHS
We’ve recently done some very interesting work for the
Commonwealth Fund, which established a commission on a national public
health system. The commission is chaired by Peggy Hamburg, the former
Commissioner of FDA, and has nationally prominent members and staff, several
of whom I worked with closely when I was at HHS. We were hired to be the
legal counsel. The recommendations were developed over a couple of months
and the report was issued in June 2022.
The report recommends, in light of the experience with the Covid
pandemic, that the federal agencies be restructured and the relationship between
federal agencies and state health departments be changed. The report explains
how all this ought to be funded and how everything, particularly at the state
level, should be upgraded.
We represent the University of Pittsburgh and interestingly, our biggest
client group has been hospitals, particularly the American Hospital Association,
in a major battle having to do with drug prices. I would not normally think I
would be representing hospitals, but in this case the hospitals are against the big
pharmaceutical companies. I always figure if I am on the other side of
pharmaceutical companies or the tobacco companies, I am in the right place.
These cases involve a program called 340B, which grew out of
legislation sponsored by Henry Waxman the year I started working there. This
program requires the drug companies to give deep discounts to community
health centers and non-profit hospitals, and it’s grown to involve billions of
dollars a year. We’ve brought two types of cases. One was against the Trump
Administration, which decided not to give the discounts to non-profit hospitals
that were seeking reimbursement for Medicare, cutting Medicare funds to
hospitals by $1.6 billion dollars a year. We won that case in the District Court
but lost 2 to 1 in the D.C. Circuit. It went to the Supreme Court, which in
June 2022 ruled 9-0 in our favor.
We also have another set of cases for hospitals about what’s called
contract pharmacies, where again the drug companies are trying to severely limit
the program. And those cases are in three different courts of appeals now.
Mr. Pollak: Have you dealt with what you were doing on small startups?
Mr. Schultz: For example, we represent a company called Cara Pharmaceuticals. They have
developed their first drug for pruritus or itching, a serious problem for people on
kidney dialysis. The kidney dialysis is paid for by Medicare, so there are
complex issues about how the price of this drug will be set and the terms under
which Medicare will pay for the drug.
Mr. Pollak: Have you found that you have more time for yourself or for other things, or has
the empty space, if any, been filled?
Mr. Schultz: I definitely have more time. I think I work hard, but it’s not like the
government. I try not to work on weekends or much in the evenings.
Mr. Pollak: And what about the non-profit boards you have served on?
Mr. Schultz: I spend a lot of time on matters that I don’t get paid for. Some of it is for public
interest organizations. I am also on five non-profit boards, and I’m a member of
the National Academies of Sciences, Engineering, and Medicine’s Committee on
Science, Technology, and Law. This committee is chaired by Judge David
Tatel, who asked me to be on it, and by Dr. David Baltimore, a Nobel Prize
winner and former President of Cal Tech. It’s a committee of eminent scientists
and eminent lawyers, many of whom are judges. In addition to various
substantive projects and reports, twice a year we have a two-day meeting with
presentations. Half are on fascinating scientific issues that I barely understand,
and half are on legal issues that I do. For example, we’ve done a lot of work on
forensic science and have issued studies challenging the use of various kinds of
forensic scientific evidence in criminal cases. These reports for example, assess
the quality of bite mark evidence, finger printing, and DNA evidence. I’ve spent
a lot of time on projects for that committee.
I’m on their executive committee, so I help set the agenda. I’ve also
run several programs including one on FDA’s emergency use authorization, the
pathway under which FDA approved or authorized Covid vaccines, Covid tests,
and Covid drugs. I’ve also directed a project on the approval of the new
Alzheimer’s drug Aduhelm, and on a new type of approvals called accelerated
approvals, where critical evidence isn’t gathered until after the product is
approved. It’s been fascinating.
Mr. Pollak: Identify the other five organizations.
Mr. Schultz: One is the National Health Law Program, which sponsors Medicaid litigation.
Their mission is to improve the lives of Medicaid patients. I’m a member of the
Historical Society of the District of Columbia Circuit board of directors, and
have been treasurer or a member for 15 or 20 years except when I was in
government. I’m on the board of the Center for Science in the Public Interest,
which is the major food advocacy group in D.C. I represented them when I was
at Public Citizen Litigation Group, and I was president of their board before
entering the Obama Administration. I’m on the Leadership Council of the Yale
School of Public Health. And then finally, and maybe the most interesting, I’m
on the Board of Trustees of Partners in Health, which is Paul Farmer’s
international healthcare group that employees 14,000 people in Africa, South
America, on Native American reservations, and elsewhere around the world to
provide healthcare to the poorest people in the world.
Mr. Pollak: A couple of general questions. What do you think your most important
contribution was during your time in government? What’s the area?
Mr. Schultz: That’s a hard one.
Mr. Pollak: Pick two or three.
Mr. Schultz: One would have to be tobacco, which I worked on for Henry Waxman, at FDA,
and at the Justice Department, and then back at Zuckerman Spaeder. But we
ended up getting legislation that set up a tobacco program at FDA that someday
may eliminate nicotine in tobacco, but in any event will control the kinds of
claims that can be made on tobacco as to whether a product is safe or whether it
is beneficial in some way. I believe FDA will ultimately use this new authority
to eliminate menthol cigarettes. The law also gave the agency the authority to
control new products, such as electronic cigarettes, although they haven’t used it
effectively yet.
Second would have to be the Affordable Care Act, which is so
important to healthcare and which I had a role in implementing and defending. I
think that the Nutrition Labeling Act is somewhere up there. It’s hard to believe,
but 30 years ago when you bought food, there was no labeling or no way to
know how many calories were in it or how much salt. And there was very little
regulation over claims that it was good or bad for you. So that’s three.
Mr. Pollak: Okay, it’s a good start. You don’t need to cover the waterfront on these
questions but speak about the rewards first generally of government service, and
secondly, compare it to the rewards of private service and what you can do with
public concerns when you are in private life.
Mr. Schultz: I think government service offers great opportunities to make a difference. I
remember when I was in Public Citizen Litigation Group, we were always
fighting the good fight always on the side I wanted to be on, and it was case by
case and often took many, many years, and at the end we might lose the lawsuit.
In contrast, when I was on Capitol Hill working for the Chairman of the
Health Subcommittee, a letter from him on the right topic could accomplish as
much as a lawsuit could accomplish. Writing new legislation, or even drafting
the committee report, can have far more impact than a lawsuit.
I loved litigation, and I loved the process. But in terms of impact, it
was such a huge opportunity to work in the executive branch positions. In each
position, I had a staff of very talented, very dedicated people. Any impact isn’t
from a single person. Instead, the impact can come from a large number of
people working together. And it was fun. I always enjoyed the people I’ve
worked with.
In private practice, I was very fortunate. Many of my friends in the
Justice Department at the end of the Clinton Administration were dreading going
back to their law firms, and it made me pretty skeptical of whether I would like
it, but I have really liked working at Zuckerman Spaeder. It’s because I’ve been
fortunate enough to get to choose what I wanted to do and be able to feel like I
am on the side of things I want to be on, with respect to everything I work on.
Some of the work I would regard as neutral, but there is a lot of what we work
on that moves things forward, where we are advocating for the public policy that
we believe in.
When people ask me what’s the difference between private practice and
government one of the things I say is, in private practice you are working on
things that you wouldn’t have time to get to in government. In other words, the
work can be very important to a client and very interesting but in terms of their
public impact, typically the same issue doesn’t rise to the top of heap of
somebody in a high-level government position.
Mr. Pollak: Did you ever want to be a judge?
Mr. Schultz: Judge Bryant always had that vision for me and he always thought I should be
on the D.C. Circuit. I guess I had an interest in it, but it was never my primary
goal, and looking back, I feel that what I did was so exciting, I’m not sure I
would have liked being a judge as much. One thing I will say that influenced me
is that even though Judge Bryant was a great judge, he didn’t like being a judge
as much as he liked being in private practice.
As it turned out, it wasn’t much of an option, because those 12 years of
Bush and Reagan were probably the years I would’ve been eligible in terms of
age and by the end of George H. W. Bush’s Administration, it just really wasn’t
possible. Although it was never a major goal, I won’t say I didn’t think about it.
Mr. Pollak: Do you want to say a word about the comparative satisfaction of private practice
and pro bono, government service and Hill service?
Mr. Schultz: It’s very hard to compare. When I clerked for Judge Bryant, I thought I would
never have a job as good as that, but I loved working at Public Citizen Litigation
Group and stayed 14 years. Although I never envisioned myself as working on
the Hill, that turned out to be a terrific job. The FDA job was amazing. Under
David Kessler, the agency was more productive and more exciting than at any
time in my lifetime. And it was great to get back to being a lawyer and arguing
appellate cases when I was at the Justice Department. Being General Counsel of
HHS was a dream job and I felt it used all the skills I had gained in my previous
jobs. I don’t think private practice offers the same opportunities to make a
difference as those other jobs, but it’s a great job.
Mr. Pollak: What worlds, public or private or personal, are you looking to conquer or what
mountains are you looking to climb now?
Mr. Schultz: I just never lived that way, Steve. I never planned ahead, so I’m just hoping to
continue to enjoy working but also have time to play tennis, go sailing, bike ride,
spend time with Sari and Rachael, and travel.
Mr. Pollak: Tell us, who are wondering, whether this life in the rough first class has for you
created stress of an unusual kind or not?
Mr. Schultz: Could you say that again?
Mr. Pollak: Whether you think a life like you’ve lived creates a special level of stress as you
make decisions, this way, that way, and the other way?
Mr. Schultz: Well, for whatever reason, I think, I’ve always dealt with stress well, and I
remember at HHS, Howard Koh, the Assistant Secretary, used to tell me he
didn’t understand how I remained so calm in the middle of such tornadoes and
hurricanes. I’ve always been successful, I think, in making my family the
priority, of making Rachael and Sari the absolute priority, so if they ever called,
I would take the call no matter what. When I got home from work and had
dinner, I would always, or almost always, spend time with Rachael and Sari until
everyone went to bed and then I would go back to work, often working very late.
When I was at FDA I typically worked until 2 a.m. and got up at 6 a.m. But I’ve
learned not to do that, and I have had far fewer back problems since I started
getting more sleep.
Mr. Pollak: How much sleep do you seek to get?
Mr. Schultz: Well since Covid, I don’t even set my alarm clock.
Mr. Pollak: That is an evasion, what’s the answer? How much do you seek?
Mr. Schultz: It’s really varied, but I try to get 7 hours and these days usually succeed.
Mr. Pollak: Are there any questions that you have that you would like answered?
Mr. Schultz: Yes, did you ever want to be a judge?
Mr. Pollak: I never did, but I always wonder whether that was a mistake. I worried that I
couldn’t write meaningful opinions.
Mr. Schultz: You would’ve been a great judge.
Mr. Pollak: Bill, here’s the coda. I like to see you laugh, and that happens frequently. I
thank you for doing your history. I think it’s a unique contribution to history,
legal history and public history. I know it will be in demand to read by so many.
I invite you to suggest persons you ran across whose histories we should
consider taking. I thank you for letting me do it. I’ve not had any other greater
pleasure. So, you’re going to Nantucket with your wife right away. I hope you
have a wonderful time and I look forward to our next meeting.
Mr. Schultz: Well, Steve, thank you. You are an outstanding interviewer and you’ve made
me remember things that I had forgotten. I’ve gotten to think about things I
haven’t thought about in a long time. Even as I go back and read these
interviews, I can’t believe that I remembered that, but that’s because of your
questions. And it was wonderful spending this time with you.
Mr. Pollak: When are you going to join with Sari and she with your help, write your
Mr. Schultz: No, this is it; you’re the author.
60 Minutes (television show), 124, 220, 233
Abzug, Bella, 150
ACA See Affordable Care Act
ACLU, 67, 85, 87, 286, 310
Administration for Children and Families, 309, 311
Administrative Procedure Act, 248
Advisory Committee Act, 318
Affordable Care Act (Patient Protection and Affordable Care Act), 185, 304-05, 307, 309-10,
312-13, 326, 328-29, 331, 335, 337, 344, 346-47, 351-52, 359-60, 362-64
availability of cost sharing, 346
Commerce Clause, 351-53, 358, 360
contraceptive cases, 350
contraceptive services, 345-46
Massachusetts model, 364
severability, 353, 356, 361
tax clause, 361
taxing power of the Constitution, 358
aflatoxin, 110-26
Agnew, Spiro, 30
AIDS, 185, 193, 205, 208-09
Altman, Robert A., 107, 109
American Association of Senior Citizens, 129
American Enterprise Institute, 290
American Hospital Association, et al v. Aza, 374
American Public Health Association v. Veneman, 136
An American Dilemma: The Negro Problem and Modern Democracy
by Gunnar Myrdal, 61
Analysis Regarding the Food and Drug Administration’s Jurisdiction Over Nicotine-Containing
Cigarettes and Smokeless Tobacco Products, 60 Fed. Reg. 41453 (Aug. 11, 1995), 238
Angulo, Carlos, 293, 296
Annand, Steve, 85, 291
Austin, Samantha, 330
Azar, Alex, 314
Baltimore, David, 375
Banzhaf, John, 240
Barber, Ray, 10
Barclay, Lisa, 247, 293, 296
Barnett, Harold (maternal grandfather), 5
Barnett, Phil, 184, 186, 201, 217, 219-20, 223, 227
Barrett, Amy Coney, 163
Barron, David, 265
Barry, Marion, 106
Baucus, Max, 302, 309
Bazelon, David, 53, 65
BCCI (Bank of Credit and Commerce International) bank scandal case, 108
Bell, Alex, 48
Bernstein, Jodie, 310, 317
Berwick, Don, 312-13, 334-35
Biden Administration, 296, 339
Biden, Joe, 161, 163, 341
Black Panthers, 30, 40
Blackmun, Harry, 74
Bliley, Tom, 186, 205, 221, 224
Bloomington, Indiana, 1-3, 6, 9
Blum, Jon, 312
Blumenthal, Joseph, 139
Bork, Robert, 141, 152, 155-60, 162, 164, 181, 265
Brennan, William, 119-20
Brewster, Kingman, 24-25, 30-31, 40
Breyer, Stephen, 256, 278, 283
Brown v. Board of Education, 10
Browns Ferry Nuclear Plant, 92
Bryant, Astarie, 75
Bryant, William B., 9, 52, 59-64, 66-68, 70-74, 76-80, 83, 169, 180, 286, 293, 319, 379
Campbell v. McGruder, 52, 62
Howard University School of Law, 61
Mallory v. United States, 62
role model, 77
Buc, Nancy, 169
Budetti, Peter, 214
Buffett, Susie, 120
Buffett, Warren, 120-21
Bunche, Ralph, 61, 77
Burger, Warren, 74, 96, 98
Burwell, Sylvia, 332, 341, 344, 360, 366, 369
Bush Administration, 213, 227, 257, 259, 295, 301, 306, 340
Bush v. Gore, 357
Bush, George H., 269
Bush, George H. W., 194, 207, 212, 234, 379
Butterfield, Alexander, 55
Cade, David, 310, 318, 336
Campaign for Tobacco-Free Kids, 301, 304, 340
Campbell v. Clinton, 274
Campbell v. McGruder, 52, 62
Campbell, Tom, 52, 62, 64, 274
Caplin, Mortimer, 50
carcinogens, 126-27, 133, 153, 195-96, 198, 281
CARE Act, See Ryan White CARE Act
Carolina Environmental Study Group, Inc., v. United States Atomic Energy Commission, 90
Carter Administration, 138, 141, 150, 169, 171, 240, 310, 354
Carter, Jimmy, 152, 169, 251
Center for Auto Safety, 138, 177
Center for Tobacco, 340
Centers for Disease Control and Prevention, 182, 242, 310
Centers for Medicare and Medicaid Services, 312
children smoking, 242
Chambers, Julius, 49
Chevrolet Corvair, 138
Chevron, 118-19, 123
Chicago Tribune, 146
Children’s Pesticide Act (Food Quality Protection Act ), 205
Childress, Mark, 212, 301-02, 305-07, 327, 333, 356
chloroform, 125
Choe, Ken, 310, 318, 344, 348, 369
Ciresi, Mike, 265
Claybrook, Joan, 138, 152, 158, 166-67, 177
Clean Air Act, 183, 188, 196, 201
Clement, Paul, 353
Clifford, Clark, 107-08, 114, 116- 21
Clifford, Glass, McIlwain & Finney (law firm), 107
Clinton Administration, 185, 213, 227, 255, 260, 267-68, 295, 297, 303, 310, 315, 317, 325-27,
329, 340, 368, 378
Clinton, Bill, 185-86, 204-05, 212-16, 227, 246, 251-52, 254-55, 257, 259-60, 262, 274, 285
Clinton, Hillary, 214, 291, 324, 344
Cohen Milstein Hausfeld & Toll (law firm), 291
Cohen, Bernie, 84-85
Cohen, Howard, 186
Cohn, Diane, 168
Collins, Francis, 332
color additives (animal carcinogens), 133, 281
Community Nutrition Institute (CNI), 110, 126
Congressional Federal Credit Union
check scandal, 232
Connally, John, 62
Consumers Union, 129
Cooley, Claudia, 243, 247
Cooperman, Mark, 22
Cope, Jim, 190
Corr, Bill, 127, 129, 170, 178, 181-82, 185, 195, 201, 247, 303, 306-08, 325, 332-33, 357, 363,
Campaign for Tobacco-Free Kids, 301, 340
Corr, Susan, 178
Covington & Burling (law firm), 108, 197
Cox, Archibald, 156
Cresswell, Cathy (wife), 44
Cutler v. Kennedy, 107
Dach, Leslie, 368
Daly, George, 89
Daschle, Tom, 185, 301-02, 309, 324, 327
Davies, Susan, 265-66
Davis, Don, 36, 38
Davis, Jeff, 336
Delaney Clause, 126-27, 134, 136, 153, 174
Dellinger, Walter, 237, 250, 255, 287
Dellums v. Powell, 67
Dellums, Ron, 67
DeNoble, Victor, 222
DeParle, Nancy Ann, 327
Detroit Free Press, 113, 122
Detroit News, 113, 122
Dickinson, Liz, 169, 319
Dieckmann, William, 142, 146
Dietary Supplement Health and Education Act, 228
Dingell, John, 170, 181-83, 192, 196, 207, 212, 224-25
Ditlow, Clarence, 177
Dodd, Christopher, 305
Dole, Robert, 252
Donaldson, Linda, 87
Dotzel, Peggy, 293, 295-96, 310, 318, 338, 369, 371
Downey, Bruce, 295
Drabble, Nancy, 129-30, 152, 175, 178
draft (U.S. military), 28-29, 58, 71, 195
Dreams from My Father
by Barack Obama, 300
Drug Price Competition and Patent Term Restoration Act of 1984, 128
Duke Power, 90, 93, 96-98, 102, 112, 125
Duke Power Co. v. Carolina Environmental Study Group, Inc., 102
e-cigarettes, 337-42, 372
Eastland, James O., 44
Eggleston, Neil, 317
Eli Lilly, 142, 145-46
Ellsworth, Larry, 87, 169
EPA, 125, 182
Eubanks, Sharon, 269
Evening Star, 13
Fahy, Charles, 65, 74
Farmer, Paul, 376
Fauci, Anthony, 317
FDA See Food and Drug Administration
FDA v. Brown & Williamson Tobacco, 246
Federal Advisory Committee Act, 215
Federal Records Act, 343
Federal Register, 237-38, 245, 252
Federal Trade Commission, 218, 242, 246, 253, 257, 293
Federalist Society, 157, 165
First Amendment, 126, 138, 156, 276
Fischer, Ray, 261
Flamberg, Gemma, 311, 318
Foley, Tom, 232
Food and Drug Administration (FDA), 103, 142, 152-53, 167-69, 172, 178, 182, 188, 190-91,
202-04, 207-213, 217-20, 222-24, 226-28, 230-31, 233-35, 237-38, 240-41, 243-51, 253-
59, 260, 262, 267-68, 272-73, 275-78, 289-97, 299-300, 309-11, 317-19, 321, 329, 331,
337-41, 366, 372-73, 375, 377, 380-81
action levels, 110-12
carcinogins, 125-27, 133, 153, 195-98, 281
color additives, 133-34, 136
Congressionally mandated review of drug efficacy, 88, 108
de minimis policy, 134, 281
drug categories and classifications, 108-09
Health Research Group, 106-07
nitrites, 136
over the counter drugs, 108
Proposition 65, 195-96
Food and Drug Administration v. Brown & Williamson Tobacco Corp., 277
Food Processors Association, 198
Food Quality Protection Act, 205
Food, Drug, and Cosmetic Act, 111, 126, 218, 275
Fox, Arthur, 87
Frank, John, 2
Freedom of Information Act (FOIA), 83, 88, 136-37, 318, 333
Friedman, Mike, 257, 259
Frist, Bill, 255
Gannett, 113, 121
Gardner, William, 74
Garland, Merrick, 121
Gelhorn, Ernest, 48, 121
Gesell, Gerhard, 71
Gibson, Mel, 231
dietary supplement video, 230
Gingrich, Newt, 205, 232-33
Ginsburg, Ruth Bader, 118-19, 134-35
Gladden, James, 145
Glenn, Patrick, 265
Glitzenstein, Eric, 168
Glynn, Patrick, 269
God Squad, 37
Goldfarb, Andrew, 265, 293, 296
Goldfarb, Ron, 51
Goldstein, Abe, 53
González, Elián, 269, 279
Gore, Al, 132-33, 218, 261, 269, 285, 297, 357
Gottlieb, Scott, 341
Grady, John, 145, 149
Green, Josh, 191
Green, Joyce Hens, 115
Green, Mark, 152, 175
Greenberg, Alan, 121
Greene, Harold H., 54, 74, 134
Grocery Manufacturers Association, 198
Hall, Kenneth, 256
Hamburg, Peggy, 296, 319, 373
Harkin, Tom, 229
Hart, George, 64
Hash, Mike, 185
Hatch Act, 332
Hatch, Orrin, 128, 130-32, 151-52, 154-55, 204, 217-18, 229, 309
Hatch-Waxman bill, 132
Healthcare Task Force, 214
Heinzelman, Kate, 369
Henderson, Stan, 46, 48
Henney, Jane, 257-59
Herbst, Arthur, 142, 145
Hersey, John, 25
Hickey, Pat, 52
Hoffman, Joel, 54
Holder, Eric, 279, 329, 347, 353
Horowitz, David, 310, 318, 338
Howard, Dick, 48-49
Howard, Phil, 48
Howard, Sally, 310
Hubbard, Bill, 247
Hunger, Frank, 261- 63
Hutt, Peter Barton, 108, 134, 154, 197-98
integration, 10-11
Jacobson, Mike, 177
Jeffords, Jim, 202
Jennings, Chris, 327, 366
Joe Camel, 268
Johnson, Lyndon B., 20, 28-29, 61
Johnson, Norma Holloway, 105
Jones, John, 15
Juggins, Warren, 66
Juul Labs, 341
Kagan, Elena, 248, 310
Kaplan, Warren, 66
Katyal, Neal, 276, 323
Katz, Ruth, 182
Katzen, Sally, 251
Kavanaugh, Brett, 159
Kendall, Henry, 88
Kennedy, Anthony, 353
Kennedy, Don, 234
Kennedy, Robert F., 83
Kennedy, Edward M. (Ted), 148, 156, 190, 203, 213, 223, 248, 291
Kessler, David, 150, 227-30, 238, 240, 247- 51, 253, 255, 260-61, 272, 359, 372, 391
See also HHS, tobacco, nicotine
Clinton Administration, 182
FDA Commissioner, 195, 198-200, 208, 212-14, 218, 221-23, 233-36
Hatch Committee, 150
Nutrition Labeling and Education Act regulations, 228
Kessler, Gladys, 260, 262, 265
King v. Burwell, 314, 352
Kitzmiller, Michael, 219
Klein, Alisa, 258
Klein, Joel, 259
Klepner, Jerry, 237, 241
Kneedler, Ed, 266, 346
Knight Ridder, 110, 113, 117-18
Koh, Howard, 373
Kopp, Bob, 264, 267-68
Koppel, Ted, 216
Kravitz, Carl, 280
Lacovara, Philip, 116
Lamberth, Royce, 275-77, 316
Lambrew, Jeanne, 326
Lang, Gladys, 143
Leadership Conference on Civil Rights, 159
Lee, Gia, 310, 318
Lee, Phil, 247
Legal Times, 137
Letter, Doug, 117, 119, 270
Levine, Selma, 53
Lew, Jack, 317, 347
Lindsey, Bruce, 254
Lorraine, Catherine, 247
Loving v. Virginia, 84
Low, Peter, 50
Lowenstein, Al, 28-29
Lupsha, Peter, 33, 42
Lustberg., Rosalind (maternal grandmother), 5
Lyman, Sophie, 74
Lynch, Mark, 87
Macrodantin (drug), 148
Madigan, Ed, 186, 196
Magaziner, Ira, 214-15
Mallory v. United States, 62
Mandela, Nelson, 66, 78
Mann, Cindy, 312
Marshall, Thurgood, 98
Matzzie, Colette, 265
Mayer, Brown & Platt (law firm), 145
McCain, John, 255
McCree, Wade, 97
McDonough, Dennis, 347-48
McGrane, Mary, 186, 194
McLain, Pat, 170, 181-82
McMillan, James, 89, 91-93, 98
McWilliams, Wilson Carey, 35
McWilliams, Carey, 35
Mead, Chris, 169, 347
Meade, David, 190
Meador, Dan, 50
Medicaid, 185, 214, 216, 254, 262, 267, 282-83, 309, 312-13, 326, 329, 335, 338, 353, 359-60,
Medical Device Act, 187, 193
Medicare, 182, 185, 214, 216, 254, 262, 265- 67, 282, 309, 312-13, 326, 329, 333-35, 338, 374
Meese, Edwin, 114, 116, 123
Mehta, Amit, 290
Menk, John, 145, 146
Metzenbaum, Howard, 130-31, 170, 180, 195, 202
Meyer, Kathy, 106, 168
Michigan Citizens for an Independent Press, 114
Michigan Citizens for an Independent Press v. Thornburgh, 114
Mikulski, Barbara, 229
Mikva, Abner, 141, 158-59, 181, 250
Miller, David, 24
Miller, Sasha, 293, 296
Mink v. University of Chicago, 148
Mink, John, 141
Mink, Patsy Takemoto, 141, 143, 145, 150
diethylstilbestrol (DES), 142
University of Chicago Law School, 141
Mleczko, Lou, 114
Moe, Marilyn, 80
Morrison, Alan, 81, 83, 86, 97, 106, 143, 155, 166, 169, 172, 177
Motor Vehicle Manufacturers Association v. State Farm, 354
Muir, John – How to Keep Your Volkswagen Alive:A Manual of Step by Step Procedures for the
Compleat Idiot, 56
Myrdal, Gunnar, 61, 77
NAACP, 49, 159
Nader v. General Motors Corp., 82
Nader v. Allegheny Airlines, 102
Nader, Ralph, 6, 38, 81-83, 86, 88, 102-04, 110, 114, 116, 122, 128, 131, 137-38, 158, 161, 165-
66, 174-76, 187
Center for Law and Social Policy, 87, 261
Chevrolet Corvair, 82
Natanblut, Sharon, 246
National Highway Traffic Safety Administration, 138
Neas, Ralph, 159, 265
Nelson, John, 22
Nelson, Karen, 182-83, 186, 227
Neufeld, John, 38
New Deal, 139
New England Journal of Medicine, 142
New York Times, 15, 174, 230-31, 295, 303
Newman, Theodore, 105
Newspaper Preservation Act, 114-15
NFIB v. Sebelius, 351, 353
nicotine, 218- 23, 225-26, 236, 241-42, 244, 271, 339-41, 377
structure/function test, 249
Nixon, Richard, 62, 67, 134, 156
Nixon Administration, 67, 134
Nutrition Labeling Act (NLEA), 188, 193-94, 195, 197, 201-02, 234
preemption, 195
standard for health claims, 203
O’Connor, Sandra Day, 113, 256, 278
O’Melveny & Myers (law firm), 287
Obama Administration, 185, 217, 257, 278, 296, 300, 303, 306, 325, 327, 329, 338, 341, 344,
368, 371, 376
Obama, Barack, 185-86, 216-17, 257, 266, 278, 283, 296, 300-01, 303, 306, 324-25, 327, 329,
338, 341, 343-44, 356, 358, 363, 366
Oberdorfer, Lou, 22
O’Connor, Jennifer, 251
Office of Management and Budget, 127, 137, 257, 366
Office of Information and Regulatory Affairs, 326
Ogden, David, 263, 268, 270
Onek, Joe, 261
Orphan Drug Act, 187, 188, 193
Parrish, Steve, 145
Pelosi, Nancy, 270
People For the American Way, 160
Perez, Tom, 317
Phelan, Jack, 104
Philip Morris, 145, 186, 220-22
Pollak, Steve, 286
Porter, Margaret, 247
Powell,Lewis, 67, 155, 158
preemption, 198
Prescription Drug User Fee Act, 208
Price-Anderson Act, 88-90, 96, 98, 101, 103-04, 174
Proposition 65, 195-96
Purdue Pharma
OxyContin, 291
Quander, Tony, 9
Rabb, Harriet, 226. 243, 247, 310, 315, 317
Rauh, Joe, 159
Reagan Administration, 133, 138, 354-55
Reagan, Ronald, 127, 133, 138, 152-53, 155, 170, 355, 379
Rehnquist, William, 75
Rein, Bert, 276
Reno, Janet, 263, 268-69, 279-80
Revercomb, George, 116-17
Ribicoff, Abe, 82
Richardson, Bill, 229
Richardson, Elliot, 157
RICO (Racketeer Influenced and Corrupt Organizations) Act, 262, 266, 271
Robb, Roger, 65
Roberson, Reuben, 168
Roberts, John, 357-59
Robertson, Reuben, 80, 87
Robinson, Spottswood, 118-19, 123
Roe v. Wade, 156
Romney, Mitt, 216, 364
Roosevelt, Franklin D., 139
Ross, Bill, 54
Rowland, Roy, 200
RU486 (abortion drug), 295
Ruckelshaus, William, 157
Ruemmler, Kathy, 317
Ryan White CARE Act, 185
saccharin, 126-27
Saharuni, Dora, 49
Saturday Night Massacre, 157
Scanlon, Kerry, 178, 179
Schaitman, Leonard, 334
Scheuer, James, 133
Schiliro, Phil, 184-85, 219, 227, 327, 366
Schneider, Andy, 185-86
Schultz, Caroline (sister), 12
Schulz, Cathy (first wife), 171
Schultz, Kathy (sister), 12
Schultz, Max (paternal grandfather), 5
Schultz, Rachael (daughter), 8, 296, 324, 380
Schulz, Sari Horwitz (wife), 7-8, 42, 112, 119, 132, 135, 171, 178-80, 297, 301, 324, 369-70,
380, 382
Mount Holyoke College, 44
architecture school, 45, 57
Schultz, William B. & Philip K. Howard, The Myth of Swing Voting: An Analysis of Voting
Patterns on the Supreme Court, 50 N.Y.U. L. Rev. 798 (1975)., 158
Schultz, William B., The Bitter Aftertaste of Saccharin, 40 Food Drug Cosm. L.J. 66 (1985);
Schultz, William B., Why the FDA’s De Minimis Interpretation of the Delaney Clause Is a
Violation of the Law, 7 J. Am. Coll. of Toxicology 521 (1988), 127
Schultz, William B. – Personal
asthma, 58
Birth Bloomington, Indiana, 1-2, 6
clerkship, 52, 59-60, 62, 71-72, 76, 79, 84, 293
delivery boy Washington Post, 13
Cincinnati, Ohio, 4
Covington & Burling, 3, 15, 68, 87, 298, 312
Federal Power Commission, 2, 21
Korean War, 1
Yale and Yale Law School, 15
Yale University, 4, 42
Groveton High School, 9
Cincinnati, Ohio, 4
High school
debate team, 16
tennis team, 12, 16
Historical Society of the District of Columbia Circuit board of directors, 376
Hollin Hills Elementary School, 9
Hollin Hills, Virginia, 6, 9, 15, 51
maternal grandmother
Columbia University, 5
Vassar College, 15
memory of John F. Kennedy was assassinated, 20
New York University Law Review, 49
paternal grandmother, 4
Peace Corps – asthma, 58
post-conviction assistance project, 57
public interest law, 47, 50, 82, 158, 165, 176
Rehoboth Beach, Delaware, 14
religion in family life, 6-7
sibling rivalry, 12
tennis, bicycling, squash, 56
squash, 56, 87, 150, 168
summer camp, 18-19, 22
tennis, 12, 16, 18, 23, 41, 60, 73, 300, 380
tennis team in high school, 16
University of Virginia School of Law, 45
law school lack of diversity, 46
Volkswagen repair hobby, 56
William Cullen Bryant Intermediate School, 9
Yale University, 40
Schulz, William – Professional
340B Drug Pricing Program, 374
Affordable Care Act, 320-321, 343-45, 348-49, 377
implementation, 362
Aduhelm (Alzheimer’s drug), 376
American Academy of Pediatrics, 290
American Hospital Association, 373
American Legacy Foundation, 291
American Public Health Association, 125, 136
Amphasta Pharmaceuticals, 372
Barr Pharmaceuticals, 294
Campaign for Tobacco-Free Kids, 145, 278, 289-90, 296, 372
Cara Pharmaceuticals, 374
Center for Science in the Public Interest (CSPI), 106, 125, 176-77, 198, 291, 376
Clinton health care plan, 205
Cohen, Vitt & Annand, 84
committee relations with the Republican staff members, 186
Commonwealth Fund, 373
Community Nutrition Institute, 125
Congressional testimony, 173, 174, 175
Convention Center case, 168
Department of Health and Human Services (HHS)
General Counsel or Acting General Counsel, 169, 173, 280, 344, 380
Department of Justice (DOJ)
Deputy Assistant Attoney General Civil Division Appellate Section, 256,
Detroit newspaper Supreme Court case, 168
development of a proposed rule to regulate tobacco, 241
Dietary Supplement Health and Education Act, 205, 228
dietary supplement legislation, 204
draft Committee Reports, 200
drafting legislation, 199
Duke Power, 125
e-cigarettes, 337- 42
Energy & Commerce Committee, 207
Subcommittee on Health and the Environment, 180
ethics issues, 331-32
Environmental Defense Fund, 125, 368
Deputy Commissioner, 234
expertise, 111-12
litigation, 107
lobbying, 103
food safety legislation lobbying, 151
Ford Foundation, 42, 44
grant, 41
generic drug companies, 130, 287, 290-91
generic drugs, 128, 130-32, 287-92, 295, 298, 304, 308, 373
GlaxoSmithKline, 292
Hatch-Waxman Act lobbying, 151
highway safety cases, 138
Innovation Center, 335
insurance rebate case., 138
Leadership Council of the Yale School of Public Health, 376
Legal Aid Society, 47, 57, 80
Medical Device Amendments (first amendments to the 1976 Medical Device
Act), 193
menthol cigarettes, 338, 339, 377
Mink case, 168
National Academies of Sciences, Engineering, and Medicine’s Committee on Science,
Technology, and Law, 375
National Council for Senior Citizens, 125
National Health Law Program, 376
National Institutes of Health, 372
National Organization for Rare Disorders, 372
National Resources Defense Council, 125
Natural Resources Defense Council (NRDC), 106
nuclear power lobbying, 151
Nutrition Labeling Act, 193-94, 377
Orphan Drug Act amendments, 193
Partners in Health Board of Trustees, 376
Pediatric AIDS Foundation, 290
personnel issues, 311, 331
Pew Foundation, 291
post-conviction assistance project, 47, 51
Prescription Drug User Fee Act, 204, 208
President Clinton’s health care reform initiative, 204
pro bono work, 298, 372, 379
procedure for drafting laws, 189
Proposition 65, 195-96, 198
Proprietary Association (trade association for the over-the-counter drug industry), 190
Public Citizen, 130-31, 135-36, 164, 171, 177, 182, 260, 271, 273-74, 281, 288, 294
Congress Watch, 82, 128-29, 151-52, 166, 175
Health Research Group (HRG), 82, 88, 103, 106-07, 120, 124-25, 128, 137, 143,
149, 151, 166-67, 174
Litigation Group, 6, 80-85, 87, 89, 103, 110-11, 124-26, 128, 133, 138, 141, 144,
148, 151-52, 155-56, 158-59, 161-62, 165-70, 170, 173-74, 178, 183, 188,
190, 265, 308, 319, 376-77, 379
The Judicial Record of Judge Robert H. Bork (1987), reprinted in 9
Cardozo L. Rev. 297 (1987), 162
Public Citizen v. Young, 135
Public Defender Service, 47, 51-52, 62-63, 80, 286
regulation of e-cigarettes, 372
Scheurer-Gore Commission on the Federal Drug Approval Process, 133, 208
stem cell research, 306
Supreme Court, 94, 113, 121
tobacco, 321, 337
hearings, 204-05, 215, 219
nicotine addiction., 223
legislation, 201
regulation, 235
Tobacco Litigation Team, 264
Trust for America’s Health, 291
University of Pittsburgh, 373
voting rights cases, 138
Wald Harkrader & Ross (law firm), 52, 55
Waxman Group, 373
Zuckerman Spaeder (law firm), 287-88, 298, 300-01, 305, 370-71, 377-78
Food and Drug Administration (FDA), 372
Scott, William, 27
Seale, Bobby, 31
Sebelius, Kathleen, 282-83, 302-04, 307, 310, 323, 325, 327, 332-33, 337, 347, 349, 353, 366-67
Secondary Payer Act, 265-67
Shakley, Dean, 37
Shalala, Donna, 185, 243, 247, 258-59
Shook, Hardy & Bacon (law firm), 145
Sidey, Hugh, 25
Silberman, Laurence (Larry), 118-19, 274-76, 316
Simpson, Alan, 162
Sims, John, 87, 126, 143, 146, 152, 168, 178
Sinaiko, Alex, 16
Sirica, John, 62, 107, 109
Spann, Gerry, 87
Spong, William, 27
Stack & Filpi (Chicago law firm), 144
Starr, Ken, 112
State Farm, 354-55
Stennis, John C., 44
Stern, Mark, 264, 274
Stevens, John Paul, 113
Stevenson, Adlai, 1, 6
Stewart, Potter, 99
Stockman, David, 127
Styron, William, 25
Sullivan, Brendan, 67-7 0
Supreme Court of the United States, 10, 22, 48, 62, 71, 74, 84-85, 89-90, 92- 96, 99-101, 103,
107, 110-13, 118-21, 125, 138-40, 155-58, 160, 162, 164-66, 168, 189, 246, 250, 255-56,
261, 271, 273, 277, 282, 284, 308, 314, 316, 321, 346, 350, 352-57, 360-62, 374
Surgeon General’s report, 263, 267
suspension calendar, 199
Swann v. Charlotte-Mecklenburg Board of Education, 89
Swardson,, Anne, 178
Synar, Mike, 222
Tatel, David, 275, 316, 375
Tavenner, Marilyn, 334
Taylor, Bill, 52, 55, 286
Taylor, James, 25
Taylor, Mike, 227, 257
Taylor, Paul, 154
Tea Party, 328
Thurm, Kevin, 243, 247, 303, 368
Title 42, 331
access by children, 242
advertising, 242
access by, 242
addiction, 235
regulation, 23i
jurisdictional statement, 244
marketing campaigns, 268
proposed rule, 244
Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless
Tobacco Products to Protect Children and Adolescents, 60 Fed. Reg. 41314
(proposed Aug. 11, 1995), 238
Tobacco Control Act, 338-39
Tobacco Litigation Team, 264, 269, 293
Tobin, James, 35
Toobin, 354, 359
Toobin, Jeffrey, 354
Trenga, Anthony, 51
Trial Lawyers for Public Justice, 176
Trump Administration, 315, 341, 347, 351, 374
Trump, Donald, 341
Truth Initiative, 267
Tucker Act, 101
Turk, James, 59
Union of Concerned Scientists, 90
United States Atomic Energy Commission (Nuclear Regulatory Commisssion), 90
United States Court of Appeals for the DC Circuit, 53, 65-67, 71, 74, 78, 90, 94, 107, 111-13,
117-18, 122-23, 125, 134-35, 137-39, 156-57, 159-60, 162, 164-65, 181, 240,
268, 275, 277, 281, 290, 316, 352, 354, 374, 379
United States Court of Appeals for the Fifth Circuit, 352
United States Court of Appeals for the First Circuit, 266
United States Court of Appeals for the Fourth Circuit, 92-93, 255-56, 277, 287, 292, 352
United States Court of Appeals for the Ninth Circuit, 107, 125
United States Department of Health & Human Services (HHS), 170, 172-73, 185, 226, 236-37,
244, 251, 253, 259, 263, 281-84, 294, 296, 301-03, 305-06, 308-09, 311, 317, 323, 325-
28, 332, 334, 341, 343-44, 346-47, 351, 355, 357, 362-63, 366, 371, 373, 380
United States District Court for the District of Columbia , 76, 78, 107, 115, 117-18, 347, 374
United States District Court for the Southern District of New York, 278-79
University of Chicago, 141-44, 146-47, 154
Unsafe at any Speed, 138
by Ralph Nader
Varmus, Harold, 257
Verrilli, Don, 284, 317, 329, 347, 353, 356, 359, 370
Vietnam War, 25-27, 29-31, 35, 40, 44, 47, 67, 219
Vitt, Geoff, 84-85
Vladeckd, David, 114, 120, 168
volunteer Army, 29
Wakefield, Mary, 368
Walburn, Roberta, 265
Wald Harkrader & Ross (law firm), 52-53, 56
Wald, Patricia, 138, 158
Wall Street Journal, 333
Wallace, George, 33
War Powers Act, 274
Washington Legal Foundation, 277
Washington Post, 13, 34, 52, 120, 131, 154, 174, 297
Washington Star, 34
Watergate, 52, 55, 62, 76, 107, 156
Waxman, Hanry, 127-30, 132, 150-51, 155, 178, 180-91, 195-96, 198, 205, 207-09, 211-12, 215,
217-21, 223-25, 227, 229-30, 243, 247, 267, 301-02, 327, 366, 373-74, 377
management style, 190
Waxman Report
How Congress Really Works by Henry Waxman and Josh Green, 191
Waxman, Seth, 256, 272, 277- 80
Weich, Ron, 286, 289
Westmoreland, Tim, 184, 187
Wetherill, Phyllis, 143
Wetstone, Greg, 184
White, Byron, 22, 55, 62, 98-99, 121-22, 355
White, Mary Jo, 279-80
White, Ryan, 185
Wiley Rein & Fielding (law firm), 276
Wilkenfeld, Judy, 246, 253
Willard, Richard, 281
Williams, Edward Bennett, 62
Williams, Stephen, 134, 275
Wion, Ann, 276
Wise, Goldie (paternal grandmother), 5
Witt, Ann, 236-37, 244
Wolfe, Sidney, 88, 107, 124, 143, 149, 166-67, 174, 177
World War II, 2, 4, 6, 14, 61, 77
Wright, J. Skelly, 65
Young v. Community Nutrition Institute, 110
Young, Frank, 110, 218
Zeller, Mitch, 246, 339-41
Zients, Jeff, 364
Zoom, 40, 330
Zuckerman Spaeder (law firm), 52, 55, 286, 293-94, 297-98
Zuckerman, Roger, 289
Table of Cases and Statutes
American Hospital Association, et al v. Azar, 967 F.3d 818 (D.C. Cir. 2020), American Hospital
Association v. Becerra, 596 U.S. ___ (2022), 374
American Public Health Association v. Veneman, 349 F. Supp. 1311 (D.D.C. 1972), 136
Brown v. Board of Education, 347 U.S. 483 (1954), 10
Bush v. Gore, 531 U.S. 98 (2000), 357
Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), 274
Campbell v. McGruder, 416 F. Supp. 106 (D.D.C. 1975), 52, 62
Carolina Environmental Study Group, Inc., v. United States Atomic Energy Commission, 431 F.
Supp. 203 (W.D.N.C. 1977), rev’d, Duke Power Co. v. Carolina Environmental Study
Group, Inc., 438 U.S. 59 (1978), 90, 102
Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), 118-19, 123
Community Nutrition Institute v. Young, 757 F.2d 354 (D.C. Cir. 1985), rev’d, 476 U.S. 974
(1986), remanded to 818 F.2d 943 (D.C. Cir. 1987), 110
Cutler v. Kennedy, 475 F. Supp. 838 (D.D.C. 1979), 107
Dellums v. Powell, 490 F. Supp. 70 (D.D.C. 1980), 67
Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978), 90, 102
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), 246, 277
King v. Burwell, 576 U.S. 473 (2015), 321, 360
Loving v. Virginia, 388 U.S. 1 (1967), 84
Mallory v. United States, 354 U.S. 449 (1957), 62
Michigan Citizens for an Independent Press v. Thornburgh, 868 F.2d 1285 (D.C. Cir. 1989),
reh’g denied, 868 F.2d 1300 (D.C. Cir. 1989), aff’d, 493 U.S. 38 (1989), 114
Mink v. University of Chicago, 460 F. Supp. 713 (N.D. Ill. 1978), 141, 148
Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29
(1983), 354
Nader v. Alleghany Airlines, 426 U.S. 290 (1976), 103
Nader v. General Motors Corp., 25 N.Y. 2d 56, (1970), 82
NFIB v. Sebelius (Nat’l Fed’n of Indep. Bus. v. Sebelius), 567 U.S. 519 (2012), 351
Public Citizen v. Young, 831 F.2d 1108 (D.C. Cir. 1987), 135
Roe v. Wade, 410 U.S. 113 (1973), 156
Swann v. Charlotte-Mecklenburg Board of Education, 311 F. Supp. 265 (W.D.N.C. 1970),
vacated, 431 F.2d 138 (1970), Ct. App. judgment aff’d in part, Dist. Ct. order aff’d, 402
U.S. 1 (1971), 89
Young v. Community Nutrition Institute, 476 U.S. 974 (1986), 110
Administrative Procedure Act, 5 U.S.C. §§ 551–559, 248
Advisory Committee Act, Pub. L. 92–463, 86 Stat. 770, 318
Affordable Care Act (Patient Protection and Affordable Care Act), Pub. L. No. 111-148, 124
Stat. 119, 185, 304-05, 307, 309-10, 312-13, 326, 328-29, 331, 335, 337, 344, 346-47,
351-52, 359-60, 362-64
Children’s Pesticide Act (Food Quality Protection Act), S.3283 — 117th Congress, 205
Clean Air Act, Pub. L. 95-95, 91 Stat. 685, 183, 188, 196, 201
Dietary Supplement Health and Education Act, Pub. L. 103-417 108 Stat. 4325, 228
Drug Price Competition and Patent Term Restoration Act of 1984 (Hatch-Waxman Act), Pub. L.
98-417 98 Stat. 1585, 128
Federal Advisory Committee Act, Pub. L. 92–463 86 Stat. 770, 215
Federal Records Act, Pub. L. 81–754 64 Stat. 583, 343
Food, Drug, and Cosmetic Act, Pub. L. 75-717 52 Stat. 1040, 111, 126, 218, 275
Freedom of Information Act, 5 U.S.C. § 552, 83, 88, 136-37, 318, 333
Hatch Act, Pub. L. 76–252 53 Stat. 1147, 332
Hatch-Waxman Act, Pub. L. 98-417 98 Stat. 1585, 128, 132, 151
Medical Device Act, Pub. L. 94-295 90 Stat. 539, 187
Newspaper Preservation Act, 84 Stat. 466 (15 U.S.C. 1801 et seq.), 114-14
Nutrition Labeling and Education Act (NLEA), Pub. L. 101-535 104 Stat. 2353, 195-96, 199-
200, 203, 234
Orphan Drug Act, Pub. L. 97-414 96 Stat. 2049, 187-88, 193
Prescription Drug User Fee Act, Pub. L. 102-571 106 Stat. 4491, 204
Price-Anderson Act, Pub. L. 85-256 71 Stat. 576, 88-90, 96, 98, 101, 103-04, 174
RICO (Racketeer Influenced and Corrupt Organizations) Act, (Pub. L. 91–452, 84 Stat. 922, 262,
266, 271
Ryan White CARE Act, Pub. L. 101–381, 104 Stat. 576, 185
Secondary Payer Act, 42 CFR § 422.108, 265-67
Tobacco Control Act, Pub. L. 111–31 123 Stat. 1776, 338-39
Tucker Act, 28 U.S.C. §§ 1346(a) and 1491, 101
War Powers Act, Pub. L. 77–354 55 Stat. 838, 274

1800 M Street, N.W., Washington, D.C. 20008 • (202) 778-1820 (o) • wschultz@zuckerman.com
Zuckerman Spaeder LLP, Washington, D.C.
Represents healthcare providers, small biotech companies, generic drug companies, individuals and
public interest organizations before the Department of Health and Human Services, the Food and Drug
Administration, other federal agencies, and in court.
Department of Health and Human Services, Washington, D.C.
General Counsel
(Acting General Counsel, March 2011- April 2013)
Responsible for legal representation and advice to the Secretary and other senior leaders of the
Department of Health and Human Services regarding programs that spend $1 trillion a year, including
Medicare, Medicaid, the Affordable Care Act, the Food and Drug Administration, the National Institutes
of Health, and the Centers for Disease Control. Worked closely with Solicitor General and other Justice
Department officials on numerous landmark cases, including four Supreme Court challenges to the
Affordable Care Act. Managed office of 500 attorneys which was responsible for all HHS litigation, and
for reviewing all HHS regulations and significant policies.
Zuckerman Spaeder LLP, Washington, D.C.
U.S. Department of Justice
Deputy Assistant Attorney General, Civil Division
Responsible for overseeing all Civil Division appellate litigation and the Department’s Tobacco Litigation
Team. Supervised 80 attorneys and argued six significant cases in U.S. Circuit Courts of Appeals.
U.S. Food and Drug Administration
Deputy Commissioner for Policy
Principal advisor to the Commissioner on all significant policy issues and responsible for development
and management of all regulations. Deputy with principal responsibility for FDA’s tobacco initiative,
food safety initiative, and legislative issues before Congress. Served as Acting Commissioner on
numerous occasions.
U.S. House of Representatives, Committee on Energy & Commerce, Subcommittee on Health and
the Environment (Rep. Henry A. Waxman, Chairman)
Lead counsel responsible for drafting and negotiating Nutrition Labeling and Education Act of 1990,
Medical Device Amendments of 1990, and Prescription Drug User Fee Act of 1992. Also worked on
health care, trade and tobacco legislation.
William B. Schultz
Page | 2
Public Citizen Litigation Group, Washington D.C.
Represented public interest and public health organizations in courts, agencies, and Congress. Litigated
law reform cases on administrative procedure, state and federal constitutional law, antitrust, voting rights,
product liability, nuclear power, and food and drug law. Argued three cases in the U.S. Supreme Court
and over 20 cases in U.S. Circuit Courts of Appeals.
Georgetown University Law Center, Washington, D.C.
1983-1993, 1996
Adjunct Professor
Food and Drug Law, 1988-1993, 1996
Civil Litigation, 1983-1987
U.S. District Court, Washington, D.C.
Law Clerk, Judge William B. Bryant
University of Virginia School of Law, J.D., 1974
Yale University, B.A. in Economics, 1970
SELECTED CASES (Principal Attorney)
Michigan Citizens for an Independent Press v. DOJ, 493 U.S. 38 (1989) (challenge to antitrust exemption
invoked to allow merger of The Detroit News and The Detroit Free Press; merger affirmed by equally
divided court).
Young v. CNI, 476 U.S. 974 (1986), 808 F.2d 943 (FDA statutory argument rejected by Supreme Court
but on remand D.C. Circuit, in frequently cited opinion, accepted APA procedural argument to invalidate
FDA action levels that had permitted contaminants such as mercury in foods without public process).
Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1978) (constitutional challenge to
limits on liability for nuclear power plants; Supreme Court accepted standing in precedential decision, but
ruled in favor of Duke Power on one constitutional issue and found the case was not ripe to decide a
second constitutional issue).
In Re: Executive Office of the President, 215 F.3d 25 (D.C. Cir. 2000) (rejected mandamus petition
contesting discovery of counsel to the President).
Campbell v. Clinton, 263 F.3d 19 (D.C. Cir. 2000) (prevailed in urging court to reject challenge by
members of Congress to war in Kosovo as violation of War Powers Act).
William B. Schultz
Page | 3
Washington Legal Foundation v. Henney, 202 F.3d 331 (2000) (prevailed in urging court not to decide
First Amendment challenge to FDA regulation of claims about unapproved uses of drugs).
Comsat Corp. v. National Science Foundation, 190 F.3d 269 (4th Cir. 1999) (prevailed in urging court to
reject third party subpoenas to federal agency).
Wolfe v. Department of Health and Human Services, 839 F.2d 768 (D.C. Cir. 1988) (en banc) (Freedom
of Information Act case to obtain logs of status of pending regulations; challenge rejected by a closely
divided court).
Public Citizen v. Young, 831 F.2d 1108 (D.C. Cir. 1987) (prevailed in urging court to reject FDA’s policy
of approving cancer-causing color additives as violation of law).
Cutler v. Hayes, 818 F.2d 879 (D.C. Cir. 1987) (prevailed in series of lawsuits that forced the FDA to
regulate over-the-counter drugs for safety and effectiveness).
Public Citizen v. Steed, 733 F.2d 93 (D.C. Cir. 1984) (prevailed in challenge to Reagan Administration’s
suspension of the tire rating program).
Morrison v. Nissan Motor Co., 601 F.2d 139 (4th Cir. 1979) (court rejected antitrust challenge to price
fixing by automobile repair shops).
American Hospital Association v. Azar, 348 F.Supp.3d 62 (D.D.C. 2018) ($1.8 billion in annual cuts to
reimbursements for hospitals illegal)
Department of Insurance v. Dade County Consumer Advocate’s Office, 492 So.2d 1032 (S. Ct. Fla. 1986)
(prevailed in case ruling that Florida law prohibiting insurance rebating violated Florida constitution).
Convention Center Referendum Committee v. Board of Elections and Ethics, 441 A. 2d 889 (D.C. Ct.
App. 1981) (en banc) (first case defining the right of legislative initiative in the District of Columbia;
closely divided court rejected argument that initiative at issue was invalid).
Mink v. University of Chicago, 460 F. Supp. 713 (N.D. Ill. 1978) (Congresswoman Patsy Mink’s
successful challenge to university drug experiment in the early 1950’s).
Leadership Council, Yale School of Public Health (2017-Present)
Member, Committee on Science, Technology & Law, National Academy of Sciences (2017-Present)
Board of Directors, National Health Law Program
Board of Trustees, Partners in Health
Member, Administrative Conference (1989, 2011-2016)
Chairman, Food and Drug Law Institute (2008-2009)
Board of Directors and President, Center for Science in the Public Interest (2005-2011, 2019-Present)
Member and Treasurer, Board of Directors, D.C. Circuit Historical Society (2004-2011, 2017-Present)
William B. Schultz
Page | 4
Board of Directors, The Keystone Center (2003-2006)
Committee on Shortening the Timeline for New Cancer Treatments,
Institute of Medicine (2002-2005)
Judicial Conference of the D.C. Circuit (1980-92, 2000, 2002-03, 2006-08)
Editorial Advisory Board, Food, Drug, Cosmetic Law Journal (Chairman, 1989)
Scheuer-Gore Commission on the Drug Approval Process (1982)
Stephen J. Pollak is a retired partner and former senior counsel of Goodwin Procter
(October 2004 to present) and was a partner (1969 to October 2004) and former Chair of the
Executive Committee of Shea & Gardner (1993-1996) prior to its merger with Goodwin Procter
in October 2004. Mr. Pollak joined Shea & Gardner in March 1969 after serving in the
United States Department of Justice and the White House from 1961 through 1969. Among his
governmental positions were Advisor to the President for National Capital Affairs (1967) and
First Assistant and Assistant Attorney General in charge of the Civil Rights Division (1965-67,
1967-69) and Assistant to the Solicitor General (1961-64), U.S. Department of Justice.
Since 1989, Mr. Pollak has been a member of the Panel of Mediators of the Courts of the
District of Columbia Circuit and, since 2016, has served as Chair of the Panel of Mediators. He
has served as mediator in approximately 80 cases.
In addition to service as mediator, Mr. Pollak’s legal practice has consisted primarily of
representing clients in trial and appellate litigation in the Federal Courts, the Supreme Court
(12 cases argued), Courts of Appeals, and various District Courts and before federal departments
and agencies. His fields of concentration in litigation have included constitutional law, labor and
antitrust law, civil rights, ERISA, and legal ethics. He has also represented individuals under
investigation for possible violation of federal laws, including lawyers and law firms against
whom complaints have been lodged with the Bar Counsel.
From 1999 through 2003, Mr. Pollak served as Special Master in the Vitamins Antitrust
Litigation, MDL No. 1285, in the United States District Court for the District of Columbia on
appointment by Chief Judge Thomas F. Hogan. He was responsible, among other things, for
resolving all discovery disputes.
Mr. Pollak has served as lead counsel for the United Mine Workers of America Health
and Retirement Funds, a collectively bargained multiemployer benefit fund, in litigation over
the validity under the labor and antitrust laws of provisions of the bargaining agreement requiring
contributions to the Funds on coal purchased by companies signatory to the agreement.
Mr. Pollak has handled more than 50 cases of this nature for the Funds, recovering more than
$100 million in contributions. Other litigation for the Funds includes lawsuits testing the meaning
of the 1992 Coal Act which created the UMWA Combined Benefit Fund and provided for its
funding primarily by companies signatory to prior collective bargaining agreements.
During the 1970s and early 1980s, Mr. Pollak was lead outside counsel for the National
Education Association in many cases at trial, on appeal and in the Supreme Court presenting
frontier constitutional, civil rights and labor issues.
Mr. Pollak served as counsel to the Secretary of the Department of Health, Education and
Welfare, Joseph Califano, in drafting regulations implementing Section 504 of the Rehabilitation
Act of 1973, and was counsel for respondent Camenisch in the University of Texas v.
Camenisch, 451 U.S. 390 (1981), in which the rights under federal law of a student with a
hearing impairment to have the assistance of a sign language interpreter were at issue.
– 2 –
Mr. Pollak was President of the District of Columbia Bar (1980-81) and a member of the
Board of Governors of the Bar (1972-73, 1974-75, 1979-80, and 1981-82). He served as Chair
of the Bar’s Public Service Activities Committee (1989-95) and was the leader of a review committee
that restructured the Bar’s pro bono activities. Mr. Pollak was President (7/2008-6/2009)
and a member of the Board of Directors (2003-2009) of the D.C. Bar Foundation. He also
served as a member of the District of Columbia Access to Justice Commission (March 2005-
Mr. Pollak has served as a member and Chair of the District of Columbia Judicial
Nomination Commission (1984-90, 1994-96), responsible for selection of the Chief Judges of the
District of Columbia Court of Appeals and the Superior Court of the District of Columbia as well
as presentation to the President of candidates for nomination as judges of those Courts.
Mr. Pollak served as a member of the Board of Directors of the Historical Society of the
District of Columbia Circuit (1993 to September 2022). He also served as President (2003 to
April 2019) and then Chair of the Board (April 2019 through September 2022).
Mr. Pollak was a member of the Board of the Lawyers’ Committee for Civil Rights
Under Law (1969 to September 2022) and served as co-chair (1975-77).
Mr. Pollak attended Dartmouth College (B.A. 1950) and Yale Law School (LL.B. 1956),
and served in the U.S. Navy (1950-53).
Mr. Pollak has received the following awards:
The Justice Potter Stewart Award from the Council for Court
Excellence of Washington, D.C. (2006)
Daniel Webster Distinguished Service Award, awarded by the
Dartmouth Club of Washington (2005)
Thurgood Marshall Award for Service in the Public Interest,
awarded by the District of Columbia Bar (2001)
Whitney North Seymour Award for 1994, awarded by the
Lawyers’ Committee for Civil Rights Under Law
Frederick B. Abramson President’s Award for 1994, awarded
to the “Public Services Activities Corporation, Pro Bono
Clinics, Stephen J. Pollak,” by the District of Columbia Bar
Servant of Justice Award for 1994, Legal Aid Society of the
District of Columbia
Wiley A. Branton Award for 1992, Washington Lawyers’
Committee for Civil Rights Under Law
– 3 –
Frederick B. Abramson President’s Award for 1992, awarded
to the Public Services Activities Review Committee, Stephen J.
Pollak, Chair, by the District of Columbia Bar
* * * * *
Present Retired Partner
Position: Goodwin Procter LLP
1900 N Street, NW
Washington, DC 20036
(202) 346-4178
Prior Partner
Position: Shea & Gardner, Attorneys at Law
1800 Massachusetts Avenue, N.W.
Washington, DC 20036
(202) 828-2090
Partner (March 1969 to October 2004)
Chair, Executive Committee (April 1993 to April 1996)
Experience: Merit Selection Panel, U.S. District Court for the District of Columbia
Magistrate Judge Vacancy and Reappointment of Magistrate Judge Kay
Member (September 5, 2014 to 2016)
Panel of Mediators of U.S. Courts for the District of Columbia Circuit
Chair (February 2016 to present)
Member (1989 to present)
Special Master, Vitamins Antitrust Litigation (U.S. District Court for the
District of Columbia, 1999 to 2003)
Counsel and Associate Independent Counsel to Independent Counsel James C.
McKay re Franklyn C. Nofziger Matters
(February 1987 to July 1988, August 1989 to 1990)
Assistant Attorney General
Civil Rights Division
U.S. Department of Justice
(December 1967 to January 1969)
Special Assistant to the Attorney General
U.S. Department of Justice
(October 1967 to December 1967)
Advisor to the President for National Capital Affairs
(February 1967 to September 1967)
– 4 –
First Assistant to the Assistant Attorney General
Civil Rights Division
U.S. Department of Justice
(April 1965 to February 1967)
Deputy General Counsel
Office of Economic Opportunity
(October 1964 to April 1965)
Legal Counsel to the President’s Task Force on the War Against Poverty
(June 1964 to October 1964)
Assistant to Solicitor General
U.S. Department of Justice
(November 1961 to October 1964)
Covington & Burling
Washington, D.C.
(1956 to November 1961)
Memberships District of Columbia Bar
and Board President (June 1980 to June 1981)
Positions: President-Elect (June 1979 to June 1980)
Secretary (1974 – 1975)
Member, Board of Governors (1972 to 1973,
June 1981 to June 1982)
Chair, Public Service Activities Committee
(1989 to October 1995); and Public Service
Activities Review Committee (1990 to June 1992)
Chair, 1998-99 Nominations Committee
Member, Bar Foundation Study Committee (1998 to 2000)
Member (1972 to present)
District of Columbia Bar Foundation
President (2008 to 2009)
Vice President (2007 to 2008)
Member, Board of Directors (October 2003 to 2009)
Past Presidents’ Council (2009 to present)
Member, Grants & Technical Assistance Committee (2009 to 2021)
District of Columbia Access to Justice Commission
Commissioner (March 2005 to March 2020)
District of Columbia Access to Justice Foundation
Board Member (2018 to September 2022)
– 5 –
District of Columbia Judicial Nomination Commission
Chair (July 1989 to January 1990)
Acting Chair (December 1988 to July 1989)
Secretary (1986 to 1988)
Member (July 1994 to January 1996; January 1984 to
January 1990)
The Historical Society of the District of Columbia Circuit
Chair (April 2019 to September 2022)
President (September 2003 to April 2019)
Member, Board of Directors (October 1993 to September 2022)
Special Committee on Gender Bias of the Task Force of the D.C.
Circuit on Gender and Race Bias
Member (September 1992 to 1995)
Member and Chair, Subcommittee on Litigation Process
(January 1993 to 1995)
American Bar Association
Member, House of Delegates (1978-81)
Member (1958 to present)
Judicial Conference of the District of Columbia Circuit
Standing Committee on Pro Bono Legal Services
Chair (1997 to July 2001)
Member (1996 to 2001)
Committee on the Administration of Justice Under Emergency Conditions
Chair (1971 to 1973)
Lawyers’ Committee for Civil Rights Under Law
Co-Chair (1975-1977)
Member, Board of Directors (1969 to September 2022)
Member, Voting Rights Subcommittee and Amicus Subcommittee
Washington Lawyers’ Committee for Civil Rights and Urban Affairs
Chair (March 1970 to March 1972)
Member, Board of Directors (1969 to 1995)
Member, Board of Trustees (through September 2022)
DKH, Incorporated; Draper and Kramer, Incorporated; and D&K Insurance
Agency, Inc., Chicago, Illinois
Chair (May 2011 to 2015)
Vice Chair of Boards of Directors (May 2009 to April 2010)
Member, Board of Directors (July 1970 to 2015)
Housing Development Corporation (Non-Profit, Low-Income Housing)
President (January 1976 to 1980)
Member, Executive Committee and Board of Directors (1969 to 1980)
– 6 –
NAACP Legal Defense & Educational Fund, Inc.
Member, Board of Directors (1987 to 1995)
So Others Might Eat, Washington, D.C.
Member, Board of Directors (June 1987 to December 1992)
Education: Dartmouth College, 1946-50, B.A., Phi Beta Kappa
Yale Law School, 1953-1956, LL.B., cum laude
Order of Coif
Managing Editor of Yale Law Journal
Jewell Prize – Highest grades, second year
Second prize for best student contribution to Yale
Law Journal (1955-56) “Expatriation Act of 1954”
Allen v. State Board of Elections, 393 U.S. 544 (1969)
Griffin v. Breckenridge, 403 U.S. 88 (1971)
Hanover Bank v. Commissioner of Internal Revenue,
369 U.S. 672 (1962)
Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1982)
Namet v. United States, 373 U.S. 179 (1963)
Presser v. United States, 371 U.S. 71 (1962)
Rabinowitz v. Kennedy, 376 U.S. 605 (1964)
United States v. Bilder, 369 U.S. 499 (1962)
United States v. Healy, 376 U.S. 75 (1964)
University of Texas v. Camenisch, 451 U.S. 390 (1981)
Williams v. Zuckert, 371 U.S. 531, 372 U.S. 765 (1963)
Willis Shaw Frozen Express, Inc. v. United States,
377 U.S. 159 (1964)
December 15, 2022
William B Schultz
December 2022
1. The Myth of Swing Voting: An Analysis of Voting Patterns on the Supreme Court, 50
N.Y.U. Law Review 798 (1975) (coauthor).
2. Drug Marketing Today: A Consumer View, 33 Food, Drug, Cosmetic L.J. 614 (1978).
3. “An Industry Hiding From Liability,” The Washington Post (April 28, 1979) (coauthor).
4. “Supreme Court Upholds Law Insulating Nuclear Industry from Liability for a Nuclear
Accident,” Critical Mass Journal (July 1979).
5. “Labels, Bans, and Consumer Preferences,” Banbury Report 6: Product Labeling and
Health Risks (Cold Spring Harbor Laboratory 1980).
6. “How the Government Made Nuclear Accident Victims Subsidize Nuclear Power,”
Critical Mass Journal (June 1980).
7. “A Lot of Baloney About Delaney,” Washington Post (November 21, 1981).
8. “To Give Drug Industry Longer Patent Terms Is Just Aiding the Rich,” Newsday
(October 1, 1982).
9. “United States v. Generix: A Preview,” 37 Food, Drug, Cosmetic L.J. 337 (1982).
10. “F.D.A.,” The New York Times (February 3, 1983) (coauthor).
11. “Contrary Signals from the FDA,” U.S.A. Today Magazine (January 1984) (coauthor).
12. Chapter: “Drugs,” Retreat from Safety (Pantheon Books 1984).
13. “The Bitter AfterTaste of Saccharin,” 40 Food Drug, Cosmetic L.J. 66 (Jan. 1985),
reprinted in III Agriculture and Human Values 83 (1986).
14. “Public Interest Law with Bread on the Table,” 71 ABA Journal 74 (Feb. 1985)
15. “Food Safety Laws Working Fine,” At Home with Consumers (June 1985).
16. “The Dyes and the Laws,” Letter to the Editor, The Washington Post (August 1, 1985)
William B. Schultz
October 2021
16a. “Rebating. A Free Market Concept,” Best’s Review (August 1985)
17. “Public Citizen Fights for Initiatives in D.C.,” Public Citizen Magazine (September
18. “Rent Control and the Post,” Letter to the Editor, The Washington Post (November 24,
1985) (coauthor).
19. “Contamination Reexamination,” Letter to the Editor, The Wall Street Journal (July 14,
20. “But Which Red Dye?,” The Washington Post (February 27, 1987).
21. “Don’t Put the Sick at Further Risk,” USA Today (March 24, 1987).
22. The Judicial Record of Judge Robert H. Bork (August 1987) (co-author of book and
director of project), reprinted at 9 Cardoza L. Rev. 297 (1987).
23. “An Obstacle to Public Safety,” Health Magazine, The Washington Post (May 10, 1988)
24. “Why the FDA’s De Minimis Interpretation of the Delaney Clause Is a Violation of
Law,” 7 Journal of the American College of Toxicology 521 (1988).
25. Letter to the Editor on De Minimis and the Delaney Clause, The New England Journal of
Medicine (April 6, 1989).
26. “Ban Red Dye to Protect Our Health,” USA Today (August 16, 1989).
27. “On Good Authority From Reader’s Digest,” The Washington Post (August 19,
28. Civil Enforcement, America’s Transition: Blueprints for the 1990s (1989).
29. Food & Drug, America’s Transitions. Blueprints for the 1990s (1989).
30. “Reforming the Civil Division of the Department of Justice,” Changing
America: Blueprints for the New Administration (1993) (coauthor).
31. “Food, Drugs and Medical Devices,” Changing America: Blueprints for the
New Administration (1993).
32. “We’re Not Dragging Our Feet on New Drugs,” The Washington Post (April 19, 1995).
33. “Some Thoughts on FDA Reform,” Tufts CSDD Newsletter, Tufts Center for
the Study of Drug Development, Vol. 21, No. 1 (February 1996).
William B. Schultz
October 2021
34. “Should Drug Firms Be Allowed to Give Doctors Peer Reviewed Reprints on
Off-Label Uses?” Physicians Weekly. Vol. 111, No. 12 (March 25, 1996).
35. “The Food and Drug Administration’s Regulation of Tobacco Products,” 355 New Eng.
J. Med (1996) (co-author).
36. “The FDA’s Decision to Regulate Tobacco Products,” 18 Pace L. Rev. 27 (1997).
37. “Tort Law Deference to FDA Regulation of Medical Devices,” 88 Georgetown L J. 2119
(July 2000) (coauthor).
38. “The Leaderless F.D.A.,” The New York Times (April 17, 2001).
39. “How to Improve Drug Safety,” The Washington Post, December 2, 2004, A35.
40. “A Modest Servant of Law and Life,” The Washington Post, November 18, 2005, A23.
41. “I Met the President Because of WordPerfect 6.1,” FDA: A Century of Consumer
Protection (Food and Drug Law Institute, 2006).
42. “Something’s Rotten in Food Oversight,” The Washington Post, September 24, 2006
43. “No Right to an Experiment,” Legal Times, September 10, 2007 (coauthor).
44. “Bolstering the FDA’s Drug-Safety Authority,” The New England Journal of Medicine,
November 29, 2007.
45. “Generic Drugs: ANDAs, Section 505(b)(2) NDAs, Patents and Exclusivities,” Chapter in
Food and Drug Law and Regulation (Food and Drug Law Institute, 2008) (coauthor).
46. “Congress Should Establish a Tobacco Regulation Program at the Food and Drug
Administration,” Cancer Prevention Research (July 2008).
47. “A Hard Pill to Swallow: Barriers to Effective FDA Regulation of Nanotechnology-
Based Dietary Supplements” (Wilson Center 2009) (coauthor).
48. “Trump’s new FDA commissioner has a huge decision to make,” The Washington Post
(May 16, 2017), reprinted in Chicago Tribune (May 17, 2017).
49. “Maryland’s price-gouging law targets the wrong prescription drugs,” The Washington
Post, August 4, 2017.
50. Don’t enact a law that diminishes the incentive for generic companies to challenge
patents, The Hill (March 20, 2019) (coauthor).
51. Should We Fast-Track a Vaccine for the Coronavirus?, The New York Times (September
17, 2020).
William B. Schultz
October 2021
52. Who should get the COVID vaccine next? USA Today (December 13, 2020)
53. To Improve Competition in Generic Drug Markets, The FDA Should Discount User Fees
For Small Players, Health Affairs (April 15, 2021) (coauthor)
54. An Evidence-Based Assessment of the Blocking Act,
the-blocking-act/ (May 2022) (coauthor)
55. Transparency practices at the FDA: A barrier to global health, Science (August 2022)
Congressional Testimony
1. Senate Committee on Agriculture, Nutrition and Forestry, Safety of Nitrites and Their
Status as Additives (September 15, 1978).
2. Senate Committee on Commerce, Science and Transportation, Compensation
Provisions in Proposed Liquefied Energy Gases Legislation (December 12, 1978).
3. Senate Committee on Human Resources, Subcommittee on Health and Scientific
Research, Food Safety Policy and Saccharin (May 9, 1979).
4. House Commerce Committee, Subcommittee Health and the Environment, Saccharin
Moratorium (May 23, 1979).
5. House Committee on Interstate and Foreign Commerce, Subcommittee on Oversight and
Investigations, Over-the-Counter Drugs (June 22, 1979).
6. House Committee on Interior and Insular Affairs, Subcommittee on Energy and the
Environment, The Price-Anderson Act (July 9, 1979).
7. House Committee on Interior and Insular Affairs, Subcommittee on Energy and the
Environment, Reform of the Price Anderson Act (March 14, 1980).
8. House Committee on Energy and Commerce, Subcommittee on Oversight and
Investigations, Competition in the Drug Industry (March 10, 1981).
9. House Committee on Energy and Commerce, Subcommittee on Health and the
Environment, Patent Term Restoration Act of 1981 (April 1, 1981).
10. House Committee on Agriculture, National Science Council Act (June 24,
11. House Judiciary Committee, Subcommittee on Courts, Civil Liberties, and the
Administration of Justice, on H.R. 1937, Patent Restoration Act of 1981 (November 12,
William B. Schultz
October 2021
12. Senate Committee on Labor and Human Resources, Food Safety Laws (June
10, 1983).
13. House Committee on Energy and Commerce, Subcommittee on Health and
the Environment, FDA Approval Labeling Act and Drug Price Competition
Act of 1983 (July 25, 1983).
14. Senate Committee on the Judiciary, Patent-Term Extension (August 23,
15. House Committee on Energy and Commerce, Subcommittee on Health and the
Environment, Drug Labeling and Advertising (October 3, 1983).
16. Senate Committee on Commerce, Subcommittee on Science, and
Transportation, Surface Transportation, Legislation Relating to Automobile
Odometer Tampering (April 12, 1984).
17. Senate Committee on Labor and Human Resources, Generic Drug Approval and Patent-
Term Extension (June 28, 1984).
18. House Committee on the Judiciary, Subcommittee on Courts, Civil Liberties
and the Administration of Justice, Patent Term Extension Legislation
(October 8, 1987).
19. House Committee on Energy and Commerce, Subcommittee on Health and the
Environment, RJR’s Premier Cigarette (July 29, 1988).
20. House Committee on Post Office and Civil Service, Subcommittee on Civil
Service, OMB Censorship of Federal Employees (May 17, 1989).
21. House Committee on Energy and Commerce, Subcommittee on Health and the
Environment, Pesticide Legislation (May 31, 1989).
22. House Committee on Science Risk Assessment and Cost Benefit Analysis (January 31,
February 3, 1995).
23. House Committee on Commerce, Risk Assessment and Cost/Benefit Analysis for New
Regulation (February 1, 2, 1995).
24. House Committee on Commerce, Drugs and Biologics (May 25, 1995).
25. House Committee on Commerce, Food Quality Protection Act of 1995 (June 7, 29,
26. House Committee on Government Reform, Food and Drug Enforcement Standards for
Medical Devices (September 14, 1995).
William B. Schultz
October 2021
27. Senate Committee on Labor and Human Resources, More Information for Better Patient
Care (February 22, 1996).
28. House Committee on Commerce, FDA Policy on Home Drug Testing Kits (February 6,
29. Senate Committee on Labor and Human Resources, The FDA’s Performance, Efficiency,
and Use of Resources (March 19, April 11, 1997).
30. Senate Committee on Labor and Human Resources, Tobacco Legislation (February 10,
31. House Committee on Appropriations, Subcommittee on Agriculture, Rural
Development, Food and Drug Administration and Related Agencies, Hearing
on Agriculture, Rural Development, Food and Drug Administration, and
Related Agency Appropriations (February 25, 1998).
32. Senate Committee on Government Affairs, Permanent Subcommittee on Investigations,
Safety of Imported Foods (September 24, 1998).
33. House Committee on the Judiciary, Subcommittee on Commercial and
Administrative Law, Federal Agency Nonacquiescence (September 16, 1999).
34. Senate Committee on the Judiciary, The Law of Biologic Medicine (June 23, 2004).
35. Senate Committee on Health, Education, Labor and Pensions, FDA’s Drug Approval
Process: Up to the Challenge (March 1, 2005).
36. Senate Commerce Committee, Interstate Commerce, Trade and Tourism Subcommittee,
Policy Implications of Pharmaceutical Importation for US Consumers (March 7, 2009).
• Chambers USA: America’s Leading Lawyers for Business (Washington, DC)
• The Best Lawyers in America, FDA Law
• Super Lawyers (Washington, DC)
• AV Peer Review Rated, Martindale-Hubbell
• 2020 Litigation Trailblazer, The National Law Journal
• 2019 Law360 Health MVP of the Year
• 2017 FDA Distinguished Alumni Award
• 2006 100 Most Influential Lawyers in America, The National Law Journal
• 2010 Champion, Legal Times, The National Law Journal
• Top Lawyers, Washingtonian, 2004, 2007, 2009
• 2006, 100 Most Influential Lawyers, The National Law Journal
• 2005 Leading Lawyers: Top Food and Drug Attorneys, Legal Times
William B. Schultz
October 2021
• 2005 Distinguished Service and Leadership Award, Food and Drug Law Institute
• 1997 National Public Affairs Special Recognition Award, American Heart Association
• Commissioner’s Special Citation, Food and Drug Administration, 1995, 1997
• 1989 50 Under 50 (Lawyers to Watch Under 50), The National Law Journal