Veteran of Many Nomination Hearings Awaits Another

Posted September 6, 2005 at 5:17pm

At 11 a.m. Tuesday, the Russell Senate Office Building is eerily empty. The throngs of Members, aides and reporters who were scheduled to be there for Supreme Court nominee John Roberts’ confirmation hearing are nowhere to be seen.

The only personality in sight is Court TV’s Fred Graham, who is wrapping up his “Open Court” show from a Russell balcony overlooking Constitution Avenue. That had been the plan before Supreme Court Chief Justice William Rehnquist’s death Saturday from thyroid cancer, which led Senate leaders to delay Tuesday’s scheduled hearing until Monday.

And that, says Graham, would remain the plan. At least for the day.

The 73-year-old Graham, who in one capacity or another has covered the Senate confirmation process of every Supreme Court nominee since Abe Fortas, can remember the days when Earl Warren was chief justice and future Justice Stephen Breyer was still a young Senate Judiciary Committee aide.

Keeping the network’s coverage going even though the hearings won’t begin until next week is “a way to establish ourselves as the network for people to turn to if they are interested in legal matters,” Graham says. The Supreme Court hearings “are the pinnacle of that.”

Graham sees the timing of the passing of his old friend Rehnquist (“a real man’s man,” he says) as providential for Roberts, the late chief justice’s protégé and former law clerk, and now President Bush’s choice to replace Rehnquist.

“Had he lived another week [or two], the hearing would have been over” and Roberts would have had “no chance of becoming chief justice,” Graham says in a soft Southern drawl. “The timing was exquisite, I must say. … You sort of think if Rehnquist is in a place where he can be aware of such things, he’s smiling down” on the situation.

Graham, who began covering the Supreme Court for The New York Times in 1965, got to know Rehnquist when the future Supreme Court justice was serving in President Richard Nixon’s Justice Department.

“At one time, we seriously discussed swapping houses,” Graham recalls with a laugh, noting that his neighborhood schools were better for children the age of Rehnquist’s and vice versa. Later, Rehnquist would call on Graham to help his son, Jim, who (“much to the chagrin of his father,” Graham says) was considering a career in journalism. (Though the younger Rehnquist got his first freelance job with a San Diego newspaper, he later opted for a legal career.)

In 1972, Graham, a former attorney who worked his way through law school at Vanderbilt as a reporter at the Nashville Tennessean, was tapped by CBS News to be its first Supreme Court reporter. Technically, that made him the second reporter to cover the court for a network, though NBC News’ Carl Stern, who was hired earlier, was assigned by his bosses to be “largely a radio reporter.” By contrast, the president of CBS News, Richard Salant, was a former attorney and Harvard Law graduate. “He loved the Supreme Court beat,” says Graham. “He put me on TV the first day.”

Washington developer Alan Novak, a former clerk to the late Justice Potter Stewart and a one-time aide to Sen. Edward Kennedy (D-Mass.), calls his longtime friend Graham “the first great network reporter to cover the Supreme Court. He’s a reporter in the old tradition, which is not flamboyant. He puts in the shoe leather. He’s also very bipartisan. He’s almost like a judge.”

After CBS pulled the plug on the Supreme Court post in a late-1980s “mass layoff,” Graham briefly took a job as an anchorman with an ABC affiliate in his hometown of Nashville before becoming the first employee hired by the newly created Court TV in 1991.

A self-described member of President John F. Kennedy’s New Frontier, Graham moved to Washington in early 1963 to work for Sen. Estes Kefauver (D-Tenn.), then the chairman of the Senate Judiciary subcommittee with jurisdiction over constitutional amendments. The job lasted just seven months, abruptly ending when Kefauver suffered a massive heart attack in the middle of filibustering the creation of the Communications Satellite Corporation on the Senate floor, says Graham. Within hours, Kefauver died.

“I was handing him his material and [then-Senate Minority Leader Everett] Dirksen [R-Ill.] walked over and said, ‘Estes, you don’t look well. … You’ve got a funny color there.’ [Kefauver] and I had been to a swimming party the night before,” Graham recalls. “He was fat enough so he could float and drink a scotch at the same time. I hadn’t noticed that he didn’t look well.”

That weekend, Kefauver’s Senate staff traveled to Tennessee for the funeral, but the following Monday, “as soon as I sat down [the full committee chairman’s chief counsel] slapped a letter on my desk firing me.”

After a stint in Kennedy’s Labor Department, Graham made the transition to journalism, becoming the first lawyer to serve as a legal correspondent for The New York Times.

In his 40 years reporting on and watching the nation’s highest court, Graham has seen his share of highs and lows in a confirmation process that was once “much more gentlemanly.”

It certainly was more humorous, at least on occasion.

Graham chuckles recalling then-Sen. Strom Thurmond (R-S.C.) “reading girlie magazines” during the hearing of then-Associate Justice Abe Fortas’ ill-fated nomination for chief justice. Thurmond, Graham says, had been one of several Senators “making the accusation” that Fortas was “coddling pornographers,” and the late South Carolina Senator apparently had brought the titillating evidence to the hearing to drive that point home. But instead, Thurmond spent “a good part of the time” perusing the magazines. “It was pretty clear he was enjoying” the pictures, says Graham. Thurmond was so caught up looking for evidence that when it was his turn to cross-examine Fortas, he “asked the exact same questions” as Senators before him.

Then, there was the man Graham terms a “loser,” G. Harold Carswell — a Southerner widely viewed as having had a segregationist past, whom Nixon nominated for the high court in 1970. “Sen. Roman Hruska (Neb.), a Republican, got in front of the TV cameras and said, ‘Even mediocre people deserve representation on the Supreme Court,’” recalls Graham. “That’s the best defense he could think of.”

After Carswell’s questioning, Graham watched as the nominee “left by the side door and then slipped in the back and sat … just listening to what others were saying about him and chewing gum” — which in Graham’s view hardly reflected well on Carswell’s chances. “I thought, ‘I don’t think we are going to have a gum-chewing justice even if he’s in the role of representing mediocre people.’” (Carswell’s nomination would be handily rejected by the Senate.)

But it was the nomination of Robert Bork to replace Justice Lewis Powell in 1987 that stands out most prominently in Graham’s mind.

“That’s when they really started this advocacy,” he says of the involvement by myriad interest groups in Supreme Court confirmation fights. “It began with the absolutely rabid speech by Teddy Kennedy on the Senate floor about how if you confirm this man there’ll be back alley abortions … a masterpiece of overstatement, and he got the public’s attention.”

The high-pitched battles over nominees continued with Clarence Thomas, who famously dubbed his 1991 confirmation process a “high-tech lynching.” (“I believe he didn’t intend to be disrespectful to Anita Hill. He was a single man; she was a single woman. He just didn’t know how you try to woo a lady when you like her,” suggests Graham.)

With the incentive to hold on to a seat on the court for as long as possible, Graham believes that justices “should be term-limited for 15 years … to take a lot of the sting out of the struggles.”

Graham doesn’t see a scenario similar to Bork’s playing out for Roberts, however.

“They may be pretty close in their ideology, but Bork came across as a double-dome, highbrow professor type. He did not have the public on his side,” says Graham.

By contrast, Roberts “is very appealing to the average American. He takes the wind out of the sails of a lot of the Democrats. … He seems to have personally disarmed a certain number of his critics … by meeting with them and coming across as a genuinely nice guy. … He doesn’t seem like the type of guy to lose something that he’s set up to win.”