Federal Judges in 2005: Conservative View

DATE February 16, 2005 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Boyden Gray on President Bush's renomination of 12
candidates for federal appeals courts
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

On Monday President Bush renominated 12 candidates for federal appeals courts.
Democratic senators opposed these nominees during Bush's last term because
they considered them to be on the far right and outside the judicial
mainstream. Seven of the nominees were blocked by Democratic filibusters. In
reaction, Senate Majority Leader Bill Frist has been talking about ending the
use of the filibuster. Yesterday we heard from Ralph Neas, president of the
liberal group People for the American Way. My guest today is Boyden Gray,
founder of The Committee for Justice. Its mission is to defend and promote
the president's judicial nominees. Gray serves on the board of the Federalist
Society, an organization of conservative and libertarian lawyers. Gray served
as counsel to George H.W. Bush during his years as vice president and
president. He worked on the White House transition team of George W. Bush in
2000. Gray is also a partner at the Washington law firm of Wilmer, Cutler &
Pickering, where he focuses on regulatory matters.

What's at stake, as far as you're concerned, in the judicial appointment
process now? And we're talking about federal judicial appointments, and
there's also likely to be at least one Supreme Court justice who will need to
be replaced during Bush's second term.

Mr. BOYDEN GRAY (The Committee for Justice): Well, ultimately, what's at
stake is the independence of the federal judiciary, which is a key component
of our governing structure and the separation of powers. What the Democrats
want to do is shape the batch to fit certain preconceived ideological goals.
Now I'm quite willing to recognize that they would say, `Well, that's exactly
what the president's doing or trying to do.' And there are a couple of points
here. What the president's trying to do is nominate individuals who will not
legislate from the bench, who will not impose their own personal views on the
electorate through the courts, people who will interpret the Constitution as
it was written, interpret legislation as it was written and not make things
up.

Furthermore, if the electorate doesn't like this approach, which has been
fairly consistent for Republican presidents going back at least to President
Reagan--this has been the approach taken by Presidents Reagan, Bush and--Bush
1 and Bush 2. If the public doesn't like that, they can, under the
Constitution, you know, elect a different president. But as it is, under the
Constitution we have, the president has not just the right but the duty to
nominate individuals he thinks are best fit for the federal judiciary. And
what the Democrats are trying to do is to deny the president that right and
shape these courts of appeals in ways that they want to do it. And this, I
think, is something that the Constitution does not assign to a senator of New
York. It's a duty the Constitution assigns to the president.

GROSS: But isn't it the job of senators to give their advice and consent on
judiciary matters such as this, and isn't it the job of the Senate to serve as
a check and balance? The president's judicial nominees have to be approved by
the Senate, and if the Senate disagrees, if senators disagree, then isn't that
part of the checks and balances system? I mean, don't the Democrats have a
right to forcefully dissent from the president's choices...

Mr. GRAY: Of course.

GROSS: ...just as the president has a right to forcefully nominate his
choices?

Mr. GRAY: Well, but you said it very well. The Senate has a right, a duty to
reject if they see fit to do so. They're not doing that. They're, in most
cases now, denying the president and the nominees an up or down vote. If the
Democrats were simply saying, `We're going to amass 51 votes to defeat a
nominee,' which I don't think they can do, but if they were to do that, we'd
be sitting here--I'd be sitting here saying, `Well, that's their
constitutional prerogative,' but they're not doing that. They're insisting
that no vote take place at all. And I don't think that's what the
Constitution envisioned. It's clearly not what the Constitution envisioned,
and the fight is all over this issue, whether the Democrats can block nominees
from having an up or down vote.

GROSS: And you're referring to the filibuster, to the Democrats' use of a
filibuster.

Mr. GRAY: That's correct. Well, it's really simply raising the vote count
from 50 to 60. That's what the Democrats have done, just sort of unilaterally
said, `All right, you need 60 votes now, not 50. We've lost the majority. We
don't have more than 50 senators anymore. But we do have more than 40, so
we're going to ask you to come up with 60 votes rather than 50, and that's
just too bad. If you think the Constitution contemplates a majority vote, you
were wrong. We're changing it, we're rewriting it and we're going to ask you
to come up with 60.'

GROSS: But the filibuster has always been a part of the Senate, so in what
sense is that rewriting? And I know a lot of Democrats would probably say in
a time like this, when Republicans control the House, the Senate, there's a
Republican president, that it's all the more important to have access to a
technique like a filibuster for the Democrats to make their voice heard and to
be a part and act a part of the bipartisan process as opposed to having
Republicans just pass everything that they want to with their majority.

Mr. GRAY: Well, that's what the elect--yeah, sure, but that's what the
public--I mean, it's like saying, `Well, gee whiz, we live in a democracy, but
if the public is stupid enough, mean enough, nasty enough to elect Republicans
to each--put Republicans in control of the House, the Senate and the White
House, why, then we have to change the Constitution to somehow restore our
power.' I mean, that's nutty. Absolutely nutty. And I mean, it's...

GROSS: But this is what confuses me.

Mr. GRAY: Again, if...

GROSS: Yeah. I'm sorry. I didn't mean to interrupt you.

Mr. GRAY: Go ahead.

GROSS: What confuses me is, it sounds like it's Republicans who are trying to
change the rules on this one because filibusters have always...

Mr. GRAY: No, no, no. It's the Democrats. What Senator Frist is saying is,
`I want to restore the precedent.' The historical precedent up until just a
year ago is to say the nominees get up or down votes. That's never happened
before. And you can say all you want that filibusters have been a part of the
judicial nomination process, but it's just not correct. It's just plain, flat
wrong.

GROSS: It might be semantics, but I know a lot of people would disagree with
what you're saying and would say that the filibuster has been used in the past
in the confirmation process.

Mr. GRAY: No judge has ever been defeated by a filibuster. I mean, that is
an uncontrovertible fact, and...

GROSS: Are we talking about whether they've been defeated or whether the
filibuster has been attempted...

Mr. GRAY: Well, that's what we're talking about, yes.

GROSS: ...as a tactic?

Mr. GRAY: Well, I mean, they just said that Fortis(ph) was filibustered, but
he was on the floor a week. If that's a filibuster, I'll grant you, you can
keep someone hanging on the floor for a week, for five legislative days.
That's not a filibuster. You know, no judge has ever been--you know, you
cannot contradict my statement because there are no data for it.

GROSS: My understanding is that although Senator Frist is now considering
trying to end the filibuster, that he was one of the 14 senators to vote in
favor of a filibuster against a Clinton nominee named Richard Paez for the US
Court of Appeals.

Mr. GRAY: Paez got confirmed. I don't know what you're talking about. No
judge has ever been defeated by a filibuster.

GROSS: I didn't say he was defeated. I said that Frist was...

Mr. GRAY: Well, then I don't care.

GROSS: ...in favor of the filibuster.

Mr. GRAY: You can filibuster people and not defeat them. I don't understand.
That's irrelevant. These judges are being blocked, being defeated by a
filibuster. They are not getting up or down votes, and the speaker--the
minority leader of the Senate issues a statement yesterday saying, `How dare
the president come back with these extremist judges after we've defeated
them?' Well, he hasn't defeated them. He's kept them from a vote. That has
never happened before.

GROSS: Now what the Democrats are saying is that the Republicans kept many of
the Clinton appointees from...

Mr. GRAY: They did not do--they never kept Clinton appointees from a vote. I
don't know what you're talking about. You know, there were more judges left
dangling and more vacancies left unfilled because of tactics in the committee
before a vote, before a nominee got to the floor. More vacancies and more
judges left dangling at the end of the first Bush administration than at the
end of Clinton's.

GROSS: It is my understanding that during the Clinton years that Republicans
blocked dozens of President Clinton's appointments with procedural tactics.

Mr. GRAY: Procedural tactics that have been used for three decades. But I'm
trying to tell you that some--yes, some judges did not make it through
committee, but there were more such blockages in the first Bush administration
than there were in Clinton. But none of this was done by filibuster, either
Bush 1 or Clinton.

GROSS: Let me try to paraphrase something that Ralph Neas of People for the
American Way said on our show yesterday and get your response to that. He
said, `Yes, there is a Republican president, but he won by 3 percent, 51
percent to 48 percent, and right now Republicans control the executive branch,
the House, the Senate, and should it be possible for a simple majority to be
able to do whatever it wants without, for instance, to elect a filibuster,
because the filibuster could force the Senate to compromise and to come up
with a more moderate solution...

Mr. GRAY: Well, that's great if you're a Democrat.

GROSS: ...a more bipartisan solution?'

Mr. GRAY: Well, that's great if you're a Democrat. I mean, of course, if
you're a Democrat or if you're a liberal, you think that, gee whiz, if you've
lost at the ballot box, then let's change the rules inside the Senate. And I
don't blame them for trying. I just hope they lose. I think they should
lose. I'm sorry. They lost, and the danger on the Republican side is that
with this newfound majority, which is so unique really for the last hundred
years, that the Republicans will blow it. They'll spend too much money in the
Congress, they'll do this, they'll do that and then they'll blow this
opportunity that they've only now gotten for the first time in a hundred
years. That's my worry, but that's not my responsibility. My responsibility
is over judges, a much narrower set of difficulties, and there the president
has the right to an up or down vote on his nominees. It's as simple as that.
That's what the Constitution provides. And he's not going to be able to do
that much that if the public doesn't like it, they can't change it four years
from now.

GROSS: So I think it's fair to say that what's happening now is that
Democrats are saying Republicans are trying to change the rules by possibly
outlawing the--you know, withdrawing the use of the filibuster...

Mr. GRAY: Well, I'm obviously not going to get you...

GROSS: And Republicans are saying, no, it's the Democrats who are trying to
change the rules by using the filibuster for judicial nominees in the first
place. Let me ask you another question...

Mr. GRAY: I'm telling you, it's not...

GROSS: Yeah.

Mr. GRAY: Yes, yes. That's the way, but let me just say, no judge has ever
been killed by a filibuster before. That's never happened until last year,
so--all right. Who's changing the rules? I'll, you know, let your readers
decide that--listeners, I'm sorry.

GROSS: My guest is Boyden Gray, founder of The Committee for Justice, which
supports and promotes President Bush's judicial nominees. Yesterday we talked
about judicial nominees with Ralph Neas, president of the liberal group People
for the American Way. Boyden Gray will be back after a break. This is FRESH
AIR.

(Soundbite of music)

GROSS: My guest is Boyden Gray, founder of The Committee for Justice, which
supports and promotes President Bush's judicial nominees.

If you're just joining us, my guest is Boyden Gray, and he's the founder of
The Committee for Justice, which is a group that supports President Bush's
judicial nominees and will work on their behalf during the confirmation
process.

Now you've said that all of the president's nominees are solidly within the
mainstream of American legal opinion, and Democrats have said that some of
those nominees are not, including some of the nominees that President Bush is
renominating. So let's talk about a couple of those nominees. One of them is
William Pryor. Tell me your thoughts about William Pryor.

Mr. GRAY: He's perfectly a straightforward nominee. Senator Specter has said
he wants to have another hearing on Pryor so he can demonstrate to his
colleagues that the opinions that Pryor has written as a judge--'cause he was
not a judge before; he was the state attorney general--while he was appointed
as a recess appointment--are perfectly mainstream, to prove that he's
perfectly mainstream. He is perfectly mainstream, and there's simply no way
one can say with a straight face that the nominees of current President Bush
are somehow out of the mainstream. It's just not the case, and there's
nothing out of the mainstream about William Pryor, absolutely nothing.

GROSS: Let me read an excerpt of a letter from the Leadership Conference on
Civil Rights to Orrin Hatch, who was the head of the Judiciary Committee at
the time that this was written in June of 2003 when he was first nominated.
`Pryor is one of the architects of the so-called states' rights movement that
seeks to limit the power of Congress to enact legislation that protects our
civil and constitutional rights.' Further along in the letter it says, `Pryor
has also been a vocal opponent on the rights of criminal defendants. In one
case, he vigorously defended Alabama's practice of handcuffing prison inmates
to outdoor hitching posts if they refused to work on chain gangs or otherwise
disrupted them, arguing that this practice did not violate the prisoner's
right to be free from cruel and unusual punishment.' And that was overturned
by the Supreme Court. And then in another case, it says, `Pryor has also
taken a number of actions hostile to the rights of gays and lesbians. He
filed an anti-gay amicus brief in Lawrence vs. Texas urging the Supreme Court
to uphold Texas' law banning same-sex sodomy. Pryor argued that, quote, "A
constitutional right that protects the choice of one's partner and whether and
how to connect sexually must logically extend to activities like prostitution,
adultery, necrophilia, bestiality, possession of child pornography and even
incest and pedophilia."' So what do you think of those comments from the head
of the Leadership Conference on Civil Rights?

Mr. GRAY: Well--I mean, to say that Pryor is a chief architect of the
approach taken by this current Supreme Court over the last two decades to
accord more sovereignty to the states--to say he's an architect of something
that's become the law of the land is, to me, not a criticism of him being out
of the mainstream. How can you criticize someone as being out of the
mainstream by accusing him of being one of the contributors to the very
mainstream that he's supposed to be not a part of? I just don't--I don't
understand that.

I mean, you can pick an individual case--I'm not familiar with either of those
briefs, but the arguments in Lawrence v. Kansas were made by lots of people
who I think would be, by the American public, considered quite in the
mainstream. So I'm totally unpersuaded by an accusation that he contributed
to a Supreme Court set of doctrines that have become the law of the land.

GROSS: Many of the president's nominees are members of the Federalist
Society, and this is a group that has a lot of well-known people who are
members: you've been on the board of directors; the current and former heads
of the Justice Department--John Ashcroft and Alberto Gonzales--are members;
former Energy Secretary Spencer Abraham; former head of the Department of
Interior Gale Norton; Senator Orrin Hatch, who is the former head of the
Judiciary Committee; former solicitor general Ted Olsen; former independent
counsel Kenneth Starr; former head of the Christian Coalition--president
Donald Hodel. How would you describe the Federalist Society?

Mr. GRAY: It's a debating society, probably best described. What they do is
put on conferences that are very evenly balanced debates on cutting-edge legal
issues. I've never been to one of these panel discussions that wasn't totally
and relentlessly and consistently evenly balanced between conservatives, if
you will, and liberals, if you want to use labels to describe two sides of an
issue. The two sides were always equally represented, they are great fun to
attend and they add a great deal to the intellectual debate in legal circles
in America.

GROSS: Ralph Neas, who was our guest on yesterday's show--he's head of People
for the American Way--said that although he knows you will describe the
Federalist Society as a debating society, he would describe it as a partisan
right-wing association of lawyers with an extremist judicial philosophy. So
why don't I give you a chance to respond to that.

Mr. GRAY: Well, what does he mean by extremist?

GROSS: What he...

Mr. GRAY: I mean, I grant that the lawyers who are members of the Federalist
Society tend to share a point of view which is different than Ralph Neas'.
That much I will concede--I mean, argue or even assert. But to say that the
Federalist Society is extremist would mean that Ralph Neas is extremist. I
mean, I'll accept--I suppose theoretically, hypothetically, for the sake of
argument, I could accept a description of the Federalist Society as extremist
only if Ralph Neas would agree that he is extremist. And then we have a
balance and then it becomes irrelevant, because it is sort of irrelevant.
Isn't it?

GROSS: In answer to your question, what he said about the Federalist Society
is that it wants to basically turn back the Constitution or federal law to the
pre-New Deal era, in which the Constitution--you know, before the Constitution
was interpreted as justifying things like federal civil rights law, federal
environmental law, Social Security, using the equal protection act for things
like that.

Mr. GRAY: Well, I am...

GROSS: Yeah?

Mr. GRAY: I am a member of the Federalist Society, and I have filed briefs
and won cases arguing for equal protection for minorities. I have been the
architect--was the architect of the--the most sweeping environmental statute
in the history, the Clean Air Act amendments of 1990. I don't think anyone
would accuse me of being--I mean, if they know me and know what I've done,
accuse me, for example, of being anti-environmental. I mean, I just think
that those are bogus descriptions.

What the Federalist Society does stand for, if it stands for sort of anything,
is a concept of limited government, of judges that interpret the Constitution
and don't rewrite it and don't make it up. That's a shorthand way of
describing what they're for. Nan Aron, who is one of Ralph Neas' colleagues
on the left, if you will--she's chairman of the Alliance for Justice--once
said at a Federalist Society debate that the Federalist Society sponsored
between her and me--she said, `Because the Republicans now control the House,
the Senate and the White House for the first time in basically a hundred
years, there is obviously no way we're going to get any new rights created by
the Congress. So now we have to look to the courts to create new rights that
we won't be able to get from the legislature.' Now that's her talking. Those
are her words, almost verbatim. And our view is those kinds of new rights
ought to come from the people through the legislature, not from unelected
judges.

GROSS: Boyden Gray is the founder of the Committee for Justice, which
supports and promotes President Bush's judicial nominees. Yesterday, we
talked about judicial nominees with Ralph Neas, president of the liberal group
People for the American Way. Boyden Gray will be back in the second half of
the show.

I'm Terry Gross, and this is FRESH AIR.

(Soundbite of music)

(Announcements)

GROSS: Coming up, we continue our conversation with Boyden Gray, founder of
the Committee for Justice. It promotes and supports the president's judicial
nominees.

And critic Ken Tucker reviews the new solo album by British singer-songwriter
and guitarist Gram Coxson.

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross back with Boyden Gray. We've been
talking about the coming battle over judicial nominees. On Monday, President
Bush renominated 12 candidates for federal appeals courts. During his first
term, their nominations had been blocked or slowed by Democrats, who
considered the candidates to be on the far right, outside of the judicial
mainstream. Gray is the founder of The Committee for Justice, which supports
and promotes the president's judicial nominees. He's on the board of the
Federalist Society, a group of conservative and libertarian lawyers.

The Federalist Society, correct me if I'm wrong here--many of the members
believe in what's been called constitutionalism, original intent or the
Constitution in exile. And, again, correct me if I'm misstating anything.
But if that is an accurate statement, would you explain what those terms mean?

Mr. GRAY: Well, they mean that the Constitution means what it says; that's
what they mean. And I don't know how else to say it. I've been involved in a
debate over wine importation--into Internet sales of wine: `Can you order up
a bottle of very fine wine from California and have it delivered to your
house?' And the 21st Amendment, which repealed Prohibition, says that the
states can do just about anything they want to do about controlling the
importation of alcohol into their borders. And there are good friends of mine
who are conservatives, Clint Bolick among them, who believe that we should
ignore the 21st Amendment. But a constitutionalist would say, `You can't
ignore the 21st Amendment. It's there. It may be inconvenient, it may seem
outmoded, but if you don't like it, repeal it. Don't just ignore it, don't
just act as though it didn't exist.'

GROSS: Is it accurate to say that a lot of the people in the Federalist
Society would like to see the Constitution interpreted as it was before the
New Deal, before the 1930s?

Mr. GRAY: No. I think the notion that we would roll back the New Deal is
absurd. You know, one of the attacks on Janice Rogers Brown, who is a highly
popular justice, highly popular because she gets re-elected by a very high
margin, highest margins in the state, on the California Supreme Court--she's a
highly respected judge. She writes more opinions than virtually anybody else
because she's assigned more opinions because she's such a well-respected
member of that court. And remember that California is one of the most liberal
states in the union. She's--anybody who gets elected by the widest margin to
the Supreme Court in one of the most liberal states in the union cannot, by
definition, be considered a right-wing nut.

But she's attacked because she once described 1937, the year where the Supreme
Court affirmed a lot of the New Deal, as, quote, "our socialist revolution."
That's been--she's been misquoted, so that--she's apparently quoted as having
said, `This was a social revolution.' No, she said, `It was our socialist
revolution.' To me, that's perfectly fair game to say that we had a very mild
form of revolution that had swept most of the rest of the world, particularly
Europe, with a vengeance. And to say that the New Deal was a mild sort of form
of socialist revolution seemed to me perfectly in the mainstream. And I don't
think anybody would argue with that. I don't see how you could argue. But no
one is arguing that we should roll the clock back and go back to 1900.

GROSS: The ABA, the American Bar Association, used to vet Supreme Court and
judicial nominees, both for the Judiciary Committee and for the president
himself. Orrin Hatch changed that to the Federalist Society when he was head
of the Judiciary Committee. And President Bush also changed that. He doesn't
use the ABA; he uses the Federalist Society to vet his nominees. Do you agree
that the Federalist Society should be doing it instead of the ABA? Do you
think the Federalist Society is more neutral than the ABA?

Mr. GRAY: I don't think the Federalist Society does any vetting. I don't
know what you're talking about. The ABA still vets nominees, as it has for
the last half century. There is a change that President Bush made, which is
that the ABA doesn't get the file to start the examination until after the
nomination has occurred. In the past, it happened when internally the White
House said, `Gee-whiz, we're thinking about X'--in the old days, the ABA would
be brought in weeks earlier. Now they're not brought in until there's a
formal identification by the White House. But the ABA still has a full
opportunity--and takes it--to evaluate and rate as qualified or not qualified
or well-qualified the nominees. And these ratings and evaluations are made
available to the Senate before the hearings are held. So the ABA continues to
play the role that it has played for half a century. The Federalist Society
does nothing like this. So I don't know what is the origin of your question.

GROSS: Now the question was about vetting somebody before their
official--with the president, the question was vetting a nominee before
they're officially nominated, before they're publicly nominated.

Mr. GRAY: I don't--I'm quite sure the Federalist Society...

GROSS: And my understanding was--I'm sorry. My understanding was that...

Mr. GRAY: Well, your understanding's wrong, I think.

GROSS: Uh-huh. So just...

Mr. GRAY: I don't--the Federalist Society does not vet anybody.

GROSS: Not for the Judiciary Committee either.

Mr. GRAY: No, I don't think so, not that I know of. It so happens--I mean,
I--the misconception has arisen that this happens because so many nominees for
the last 25 years happen to be members of the Federalist Society. But that's
hardly remarkable. And the Federalist Society does not have a mechanism for
vetting. They do not vet. And I don't think anyone relies on them for
vetting. That's, you know, a sort of specialized process, and it takes a lot
of manpower to do that.

And the principal vetting, of course, is done by the FBI because what you're
really worried about--you can always go on the Internet and find someone
writing--what you're really worried about is something that is not on the
surface. And that is something which is done by the FBI. It's done by the
White House Counsel's Office. They ask very, very strict questions. And it's
not...

GROSS: Are we having a semantic thing here? Is it because I used the word
`vetting' as opposed to `consultation,' like `pre-nomination consultation'?

Mr. GRAY: Well, I don't know what I--vetting has a very definite meaning.

GROSS: Maybe I shouldn't use the word `vetting.' Maybe I should use the word
`prescreening' and `consultation.' Would that change the picture?

Mr. GRAY: Well, is there consultation? People talk. Is there a formal
mechanism? They have weekly meetings? Is there--no, there's no formal
consultation mechanism. Is there discussion among lawyers who are like-minded
and think alike and see their colleagues on a period basis? Of course there's
discussion. But is there a formal consultation process? No. What happens is
that many of the nominees turn out to be--in recently Republican
administrations, many of them turn out to be members of the Federalist
Society. And so from that, people deduce, `God, they must be in control.'
But there's nothing to control. There's no--the Federalist Society has a
budget of about $4 million. I mean, it's a teeny organization. It doesn't
have sort of teams of researchers at the ready lined up in libraries to charge
out to investigate nominees. This is just not--I mean, I don't know. It's a
fantasy.

GROSS: My guest is Boyden Gray, founder of The Committee for Justice, which
supports and promotes President Bush's judicial nominees. Yesterday we talked
about judicial nominees with Ralph Neas, president of the liberal group People
for the American Way. Boyden Gray will be back after a break. This is FRESH
AIR.

(Soundbite of music)

GROSS: My guest is Boyden Gray, founder of The Committee for Justice, which
supports and promotes President Bush's judicial nominees.

Let me ask you a little bit about the past in a book about Clarence Thomas by
Ken Foskett. He describes you as the most critical contact in Thomas' path
to the judiciary. What was your role in bringing him to the attention of
President Bush? 'Cause you've been active in the judicial process for a long
time, and I'm sure you've learned a lot of lessons over the years from your
successes. And I'd just be interested in hearing, you know, some of the
lessons you've learned from the Clarence Thomas confirmation process. So
let's start with: Why did he come to your--how did he come to your attention,
and why were you so enthusiastic about him and wanting to bring him to the
attention of President Bush?

Mr. GRAY: Well, in fact, President Bush knew Thomas before I did--met him
before I ever did. But I got to know him because he was a commissioner at the
EEOC, which involved some of my sort of activities in the White
House--regulatory review that I was in charge of. So the EEOC was one of many
agencies that I monitored. The chairman of the EEOC was one of the
grandfathers of the disability movement, a man named Evan Kemp--really, in
many ways, the inspiration behind the Americans With Disabilities Act, which
President Bush promised to enact in his campaign in '88 and then subsequently
did get enacted, first civil rights statute for disabled people in the world
and became a model for disability civil rights.

Evan Kemp was a great friend of Clarence Thomas. They became very, very great
friends. And I was a great friend of Evan Thomas, both because of our work on
disability issues but also because he was a great person and, I have to
confess, loved to play bridge, which I shared. And so I would see Thomas at
his apartment from time to time and, in that capacity, got to know Thomas
better than I might have otherwise. So I knew Thomas' grand and great
qualities. Although I have no doubt that I played a key role in all of this,
I just want to emphasis that President Bush knew Clarence Thomas before I did.

GROSS: What are some of the things you feel you learned from the Clarence
Thomas confirmation process that you've applied to subsequent confirmations,
even for federal courts?

Mr. GRAY: Well, the one thing that sort of is a principal--you know, you
wonder what the judges that are being blocked--that were being blocked have in
common. You know, most of them tended to be women and minorities--you know, a
couple of women, a black, a Hispanic, an Arab, the first Arab nominee, Al
Saed(ph). The nominees that were blocked were predominantly minorities. And
so one thing I've learned is the one thing the Democrats really don't like are
minorities who are also conservative.

What else have I learned? Well, that the nomination process has got a lot of
problems; that the federal judiciary is too powerful, that it's become such a
focal point for power that that's why these nominations become so hotly
contested, why they've become so fought over. And the problem is not anything
with the--anything wrong with the nominees. The problem is that there's just
too much power. Now I would argue and assert that what the Republicans want
to do is to reduce that power by saying that judges should defer to
legislatures, you know, and defer to the original meaning of the Constitution,
so as to reduce the relative power of the courts vis-a-vis the legislatures.

That is oversimplifying, I think, the basic philosophy of Republicans, but
it's going to be a long time before we ever get there, if we ever do. And the
courts are going to remain all-powerful arbiters of American life, and that's
just a fact. You know, I was in this panel discussion yesterday, and I
reminded people, which I think people need to be reminded, that the De
Tocqueville said over 150 years ago, this great social critic and political
critic of the United States from France--said--and this is a long time, the
early 19th century--that, `The genius of the American people was to take all
intractable political questions and turn them into judicial ones for
resolution by the courts.'

So the power of courts to issue essentially political judgment is not a new
thing in our history. But the trouble is that the central governments are so
much more powerful today than they were, say, 150 years ago that that, you
know, multiplies the power of the courts tenfold. And it makes people
uncomfortable because, as I said earlier, the judges aren't elected and aren't
responsive and aren't accountable to the electorate.

GROSS: You know, you had said that you think that Democrats are uncomfortable
with minorities who are conservative. And that would account, for instance,
to some of the reaction against Clarence Thomas. I think what some Democrats
might say is that Republicans sometimes intentionally choose people of color
who are conservative because it would be harder to contradict or attack their
judicial views without it also seeming like you were being racist. Do you
know what I mean? It makes it more difficult for anybody to oppose them.
What would you say to that?

Mr. GRAY: Well, Miguel Estrada is very much cut from the same cloth as a
Bill Pryor, as a Priscilla Owen, as a Mike McConnell, who was confirmed, as a
Mike Luttig, who is now a candidate for the Supreme Court--possible. He's cut
from the same cloth. And why should he not be nominated because he happens to
be Hispanic and, therefore, lend himself to the kind of accusation that we're
playing the race card? Well, what that means is we cannot nominate minorities
who happen to be conservative, and that's absurd. We'd be accused of being
anti-minority. The logic of this, in other words, is just comical.

GROSS: Another question that has been raised is since President Bush has said
that he wants to be a uniter, not a divider, since he won by a 3 percent
majority, which isn't that large, and since the Republicans control the House
and the Senate now, should there be a greater responsibility on the president
to appoint moderate judges to the federal courts and to the Supreme Court?

Mr. GRAY: I'll--the only way I can answer that question is where I started.
What he has done is in the mainstream of what Republican presidents have done
for 25 years. If anything, his judges are less conservative than his father's
or Reagan's. Why on earth, after having for the first time not only won
re-election but increased his margins in the House and the Senate for the
first time probably ever, should he say, `Gee-whiz, I should go veer off to
the left and get out of the mainstream of the Republican Party for the last 25
years'? That is totally preposterous. It's a preposterous suggestion. He's
not going off to the right as a result of--he is doing what Republican
presidents have been doing for 25 years. He ought to be allowed, for the
remainder of his term, to continue in this same tradition.

GROSS: And when you're talking about that tradition, you're talking about
Chief Judges Clarence Thomas and Antonin Scalia...

Mr. GRAY: I'm talking about his nominees to the bench.

GROSS: Mm-hmm. Oh, OK.

Mr. GRAY: I'm talking about his nominees to the bench. I'm talking
about--and, you know, gosh, judges don't always behave the way you want them
to after they've been on the court for a decade. The landscape is littered
with people who disappointed their sponsors. You know, Oliver Wendell Holmes
is the prime example. You know, I think most of the judges on the Supreme
Court now are Republican, but some of them are the most liberal--some of those
Republicans are the most liberallike: Souter and Stevens.

So, you know, liberals shouldn't be so panicked about all this. This is not
the end of the world. And the president ought to be entitled to do what he's
been doing and what Republicans have been doing for the last 25 years. And to
say that he should now pull back and start giving things to his enemies, when
he's not doing anything that is different than any Republican president has
done, strikes me as being silly.

GROSS: Boyden Gray, thank you so much for talking with us.

Mr. GRAY: My pleasure.

GROSS: Boyden Gray is the founder of The Committee for Justice, which
supports and promotes President Bush's judicial nominees. Yesterday we talked
about judicial nominees with Ralph Neas, president of the liberal group People
for the American Way.

(Soundbite of music)

GROSS: Coming up, Ken Tucker reviews a new solo album by Graham Coxon, former
lead guitarist of the British band Blur. This is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Review: Graham Coxon's "Happiness in Magazines"
TERRY GROSS, host:

Graham Coxon was, until two years ago, the lead guitarist for Blur, a British
band known for their loud, elaborate psychedelia and extravagant emotionalism.
Blur was a huge hit act in Britain and a moderate success in the States. Rock
critic Ken Tucker says Coxon's new solo album, "Happiness in Magazines," is
much simpler, much less blurry and much better.

(Soundbite of song)

Mr. GRAHAM COXON: (Singing) Saw you on my computer. Ne'er seen no one cuter.
Positively ...(unintelligible). You got me in a stupor. You are
(unintelligible).

KEN TUCKER reporting:

There'll always be in England a land where just a few years ago the debate
raged in rock circles: Who was the bigger, better band--Blur or Oasis? Here
in America, a comparatively small number of people said, `Gee, these are two
amusingly grumpy, loud bands,' and let it go at that. As a solo artist,
Graham Coxon is liberated from Blur to come into focus as a fellow with
low-key charm and oodles of self-deprecation.

(Soundbite of song)

Mr. COXON: (Singing) Hey, went in the shower, and I fainted on the floor. I
was free...

TUCKER: Didn't the start of that song sound like it was going to swerve into
the Moody Blues' "Knights in White Satin"? Graham Coxon seems to be using
this album to nod in the direction of fellow Britons he has a fondness for.
He's spoken in interviews of how freshly impressed he was when he listened to
Paul McCartney and Wings' old album "Band on the Run" recently. You can hear
that influence in a carefully crafted but loose, baggy song like "Hopeless
Friend."

(Soundbite of "Hopeless Friend")

Mr. COXON: (Singing) Listen, my hopeless friend. Listen, my hopeless friend.
Come inside and drop your coat. Wash your hair. You smell like a goat.
Listen, my hopeless friend. Listen, my hopeless friend. If you...

TUCKER: As a singer-songwriter, Graham Coxon is a guitarist, which is to say
his voice is nothing special, just a soft, chalky sound. And when he can
think up the right excuse, he likes to rip loose with some searing guitar
tracks that he layers on top of each other and then speeds up.

(Soundbite of song)

Mr. COXON: (Singing) Nothing to see, nothing to hear, nothing to be, nothing
to fear, nothing to prove, nothing to say, nothing to lose, nothing to gain,
nothing to feel, nothing to hate. Nothing is real. It's all too late. What
do you do when nothing's wrong? Ain't got no clue. Ain't gonna stop. Yeah,
I'm foaming at the mouth. Yeah, I'm mad without a doubt 'cause I'm literally
freakin' out. But I'm going out of my mind. TV got me going blind. And I'm
really breaking out.

TUCKER: This album, "Happiness in Magazines," contains the sort of music
that, unfortunately, America seems to have little use for at the moment. I'm
not talking about the jangly guitar rock that appeals to little more than
aging nostalgists, but the sort of album that can be listened to as an album,
a collection of songs that cohere as an artistic statement. In Coxon's case,
his album tells the story of a guy who's relieved at not being the next big
thing and who's given up rock star substance abuse as well as the emotional
abuse that rock stars can inflict upon the people around them. Coxon is that
oddity, a humble guy who hasn't lost his touch, who can dial it down without
losing the juice that makes his music electrical.

GROSS: Ken Tucker is author of the new book "Kissing Bill O'Reilly, Roasting
Miss Piggy." He reviewed "Happiness in Magazines" by Graham Coxon.

(Soundbite of music)

(Credits)

GROSS: I'm Terry Gross.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.