Howard Phillips has been working for the conservative cause for more than forty years—as a campus activist, in the Nixon White House, through The Conservative Caucus, and by running for president three times. I recently spoke to Howard Phillips for an hour. The first of our four-part interview focuses on the recent nomination of John Roberts to the Supreme Court, and the recent history of Republican presidents and their Supreme Court nominees.
DAN FLYNN: Howard Phillips, you wear many hats. You’re the chairman of The Conservative Caucus. You’ve run for president three times. Now, you’ve jumped into the blogosphere. What motivated you to start a blog?
HOWARD PHILLIPS: My son, Doug, has been doing it for quite some time. Art Harman, who runs our website, urged me to do it and I finally succumbed.
FLYNN: I want to get your response to the nomination of John Roberts to the Supreme Court by George W. Bush. The reaction among conservatives has generally been that of elation. What do we know of John Roberts that would justify this generous reaction?
PHILLIPS: Let me put this into context. People say you can’t tell how a Supreme Court nominee will turn out once on the bench. I respectfully disagree. In most cases, it’s very clear. I opposed the nomination of Sandra Day O’Connor because it was very clear that she had a pro-abortion record in the Arizona state senate and as a judge in Arizona. She was also allied with Planned Parenthood. I opposed David Souter because I read his senior thesis at Harvard in which he said he was a legal positivist and one of his heroes was Oliver Wendell Holmes and that he rejected all higher law theories, such as those spelled out in our Declaration of Independence. In addition, he was a trustee of two hospitals: Dartmouth Hitchcock and Concord Memorial. He successfully changed the policy of those two hospitals from “zero abortion” to “convenience abortion.” I testified against Ruth Bader Ginsburg because her record was clear. She saw the Supreme Court as a Supreme Legislature. She was on the far Left of virtually every issue. Yet, only three members of the U.S. Senate voted in opposition to her confirmation. Only eight voted in opposition to Breyer. With respect to Judge Roberts, I’m in the midst of an extensive and intensive study of his record. Several things become clear, although I’m not ready to reach a final conclusion. It is clear that while he claims to have no overarching judicial philosophy he does have a point of view on most of the big issues. But that point of view is overshadowed by his pragmatism and his desire to stay within what is perceived as the mainstream.
FLYNN: So you think he’s more an establishment conservative or an establishment Republican?
PHILLIPS: I think he’s a very talented, ambitious conservative. What is clear, from examining his biographical record is that his goal is not simply to be confirmed as a justice of the Supreme Court. He wants to be chief justice. There’s a very good chance, maybe sooner than later, that he’ll be named to be chief justice.
FLYNN: Do you think Rehnquist, because Roberts clerked for Rehnquist, wants that to happen as well?
PHILLIPS: I don’t know that. I do know that Rehnquist is very high on Roberts. I believe that Roberts’s ambition to be chief justice will color his approach to Supreme Court cases. I think, as Charles Krauthammer pointed out in a column, one might bet that he would vote to sustain Roe v. Wade—although that’s by no means a certainty. But I think it’s clear that until such time that he becomes chief justice he is going to be very cautious about overturning precedent or issuing statements that are out of what is perceived to be the mainstream. As he’s indicated, in his personal beliefs he is anti-abortion, as is his wife. But I also look to his statement that his personal beliefs would not have an impact on his rulings, they would not require him to overturn Roe v. Wade.
FLYNN: Is there a lot of information that we have at our disposal to read the tea leaves and figure out where he stands?
PHILLIPS: There’s a great deal of information. I’m in the process of reviewing the cases he brought to the Supreme Court. I’ve read everything from the Harvard Crimson and the New York Times to papers in Indiana about his youth. I’m looking at the transcripts from his confirmation hearings. He does have some good instincts. But they are very often put in the closet as a result of his pragmatism.
FLYNN: And his pragmatism, you think, stems from his desire to get ahead and become chief justice?
PHILLIPS: No one knows what is in the mind or the heart of another man. But I think that one could circumstantially conclude that that’s a strong possibility. If you look at things that he wrote—when he was assistant to William French Smith at Justice, when he was in the office of the general counsel under Fred Fielding, when he was deputy solicitor general under Ken Starr, when he was on the Harvard Law Review, etc.—he does manifest a clear understanding of the conservative position. He understands, for example, that Congress has the right to limit the jurisdiction of the courts—that’s very encouraging. He took a stand against forced busing (although it was a clouded stance in some respects). He’s taken stands on a number of other issues, which suggests that he knows what is Constitutionally correct. But he also has an inordinate respect for the present context and existing precedent.
FLYNN: You mentioned your opposition to David Souter. My understanding is that you were one of the only conservative leaders to speak out against David Souter. In fact, the entire Republican caucus in the Senate voted to confirm him. The opposition came from Democrats, who today obviously look rather favorably on Souter.
PHILLIPS: You know it’s interesting, Dan, that both O’Connor and Souter when initially put forward were criticized by most left-wing organizations. In the case of Souter, Republican, conservative movement, and Christian leaders just rolled over because of their emotional connection to President George H. W. Bush. When John Sununu told them that Souter was a “home run,” that was enough for them. And even when I presented the hard evidence, they were unwilling to do it. One of my very good friends was Gordon Humphrey, senator from New Hampshire, he had been a state coordinator for The Conservative Caucus during the 1970s. When I testified before the Judiciary Committee, and the opportunity for testimony was made possible by the help of Gordon Humphrey, he basically said, well you’ve presented certain facts which are troubling, but maybe George Bush knows more than we do about what’s happening. I remember Mel Thomson, the governor of New Hampshire, called me and asked, “Is Souter a homosexual?” I said, “I have no idea if he’s a homosexual, but I do know that he’s pro-abortion.” Nonetheless, out of loyalty to the president and because of Souter’s New Hampshire connections, New Hampshire conservatives went with Souter, despite the fact that his principal proponent was the most pro-abortion Republican in the U.S. Senate, Warren Rudman. So, I think it’s better to look at the evidence, and that’s what I’m trying to do in the case of Judge Roberts.
FLYNN: Ann Coulter has warned in a controversial column that conservatives would be best served to be a little more cautious than they’ve been. She’s been blasted for not being a team player. Back in 1990, when you were speaking out against David Souter, did you experience a similar reaction among conservatives. How did they receive your criticism of Souter?
PHILLIPS: I was very unpopular because they had committed themselves emotionally to whatever George Bush was going to do. They couldn’t imagine that he hadn’t checked out Souter’s record and so forth. But I’m used to being “the skunk at the lawn party” when I smell something skunk-like. Now, I’m not saying that’s the case with Judge Roberts—he has many positive elements. But there are some things that trouble me. For example, when he stood next to George Bush at the announcement of his appointment he pointedly, on two occasions, referred to America as a constitutional democracy. When, in fact, we are a constitutional republic. There is a clear distinction between a republic and a democracy. The Constitution guarantees to each state a republican form of government. The Founding Fathers were strong critics of democracy. It seems to me that it was a carefully conceived choice of language, which was an effort to disarm and possibly pander to some of his critics on the Left.
FLYNN: Republicans, going all the way back to Eisenhower, don’t have a particularly good track record of appointing justices who reflect a sensible interpretation of the Constitution.
PHILLIPS: The tragedy with Eisenhower—Eisenhower was quoted as saying his two biggest mistakes in life were up there sitting on the Supreme Court (one of them was Earl Warren, the other was William Brennan)—the irony is that Eisenhower had promised the so-called “Catholic seat,” and there are now four persons of Catholic faith on or to be on the court, he had promised it to Clarence Manion, one of the greatest men of the twentieth century, whose son Dan is currently an appeals court judge. Anyway, “Pat” Manion, the dean of Notre Dame’s law school, was a great constitutional conservative. He was a mentor to me, and someone whom I admired greatly. He was head of Democrats for Eisenhower in 1952. On a matter of principle, when pressed by Herbert Brownell (Eisenhower’s attorney general) to conform his view with that of President Eisenhower’s, [Manion] said: My Constitutional perspective is such that I can’t agree with Ike on this. And Brownell said: well, that just cost you a seat on the Supreme Court.
FLYNN: On what issue was that?
PHILLIPS: It was the Bricker Amendment.
FLYNN: Mannion was for the Bricker Amendment and Ike was against it?
PHILLIPS: Exactly. So we got Brennan instead, whose views were antithetical to those of Dean Clarence Manion. And, in the case of Warren, Eisenhower was paying a debt, which Brownell, a Rockefeller, liberal Republican, had contracted at the Republican National Convention when Warren dropped out of the presidential race and helped deliver his delegation to Eisenhower.
FLYNN: Do you think Republican presidents fear a tough confirmation battle more than they fear placing a liberal on the Supreme Court? Or, do you think these liberal justices reflect the Constitutional outlook of the presidents who placed them there?
PHILLIPS: Well, I respect the fact that Bush did some serious study before he nominated Roberts, and, from a political standpoint, it’s a brilliant appointment. But, there are two kinds of leaders, one is a leader who is willing to go for the very best and is willing to get only 51 percent. There’s another kind of leader who makes preemptive concessions so that he can get 85 percent support. Bush is an 85 percenter. Those 51 percent battles are hard to win, but they’re worth winning.
Come back to FlynnFiles tomorrow for part two of this interview, in which Howard Phillips discusses the state of the conservative movement, the perils of party loyalty superceding loyalty to principle, and the folly of the Republican strategy of “preemptive concession.”