William B. Schultz Interview 5

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ORAL HISTORY OF WILLIAM BARNETT SCHULTZ
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.
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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).
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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.
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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
lawyers.
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,
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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.
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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
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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
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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.
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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.
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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
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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
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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.
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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
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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
Senate.
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
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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?
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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
Kennedy?
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
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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).
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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
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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
liberal?
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).
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Bork wasn’t an idealogue because he voted with Abner Mikva 80% of the time
overall.
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.
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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
nomination.
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.
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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.
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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).
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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?
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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
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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
picture.
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.
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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.
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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
right.
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.
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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
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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.
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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
Hill.
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.
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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?
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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.