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Mr. EDWARD LAZARUS (Author, "Closed Chambers"): Well, I think the
theme of the book is the idea that these justices are closed off from
one another. One of the things that I was talking about at great
length in discussing the cases of death penalty and abortion and race
discrimination is that the justices themselves are very isolated in
their decision making. They don't talk to one another the way we
would expect them to. And so that idea of closed chambers, the
isolation within the court, was very important. And at the same time,
it's closed off from the American people. We don't know enough about
how our most important cases are decided. Part of the enterprise of
the book is to tell the American people about how those cases are
decided, and so it seemed an apt title for that reason.

LAMB: The subtitle here is "The First Eyewitness Account of the Epic
Struggles Inside the Supreme Court." That's the Supreme Court of the
United States. Why is this the first eyewitness account?

Mr. LAZARUS: Well, there have been journalistic accounts in the
past. "The Brethren," of course, in--in--I think, that's 1979. It
was published--is the most famous of those, where the--you know, Bob
Woodward, the famous journalist, was able to penetrate the court
and--and learn a lot about how the Burger court worked. The
difference, I think, between that kind of book and the book that I've
written is two things. One, that I was there for a year as a law
clerk. That's a--sort of a right-hand assistant to one of the
justices. And the second thing is that I wanted to talk about the
great issues that the court is deciding. Most c--books that--that
write about the court, they deal with a very broad range of issues and
just kind of skim the surface of each issue. I wanted to get into
some of these issues, like the death penalty and abortion and race
discrimination, deeply. And so that's when I speak of epic struggles.
What I'm talking about is the--the real division in our society about
how to proceed on these issues.

LAMB: How many clerks are there with the Supreme Court?

Mr. LAZARUS: Well, each justice is entitled to four. Now Justice
Stevens has habitually only taken three. The chief justice has only
taken three, although he's, in fact, entitled to an extra clerk. By
and large, 36. Young law school graduates. I was 28 years old. I
had had one year of clerking for a lower federal court judge, but
essentially, y--you're right out of law school and there are four of
you working together for one of the justices.

LAMB: What law school did you go to?

Mr. LAZARUS: I went to Yale.

LAMB: And what--what was the justice that you worked for? Who was
the justice you worked for at the Supreme Court?

Mr. LAZARUS: Well, I worked for Justice Harry Blackmun, and he is
a--a Nixon appointee from the early '70s from Minnesota.

LAMB: What year?

Mr. LAZARUS: And I was there from 1988 to 1989. It starts--the
clerkship starts in July, shortly after the court recesses for the
summer. So July of 1988. And then you follow one year of the court.
You're there until July of the next year, after the court recesses
again.

LAMB: And when you served on that--as a d--clerk in 198--88, how many
justices were there then that are not there today?

Mr. LAZARUS: Four that who--who--who have left. And that is
Justices Brennan and Marshall, the sort of old liberal guard from the
Warren days, then my own former boss, Justice Blackmun, is retired, as
had Whizzer White, who was a Kennedy appointee.

LAMB: Have you talked to Justice Blackmun about this book?

Mr. LAZARUS: Well, I certainly talked to him many times during the
writing of the book. I haven't spoken to him in the--in the few weeks
since it came out.

LAMB: So you have no idea what he thinks of it?

Mr. LAZARUS: Not at this point, no, although I hope he's enjoying
it.

LAMB: What's the harshest thing somebody's said about your book?

Mr. LAZARUS: The harshest thing someone said is in The Wall Street
Journal. There was the suggestion that I had done something improper
in writing the book and I--that's ridiculous.

LAMB: But you are the first clerk to ever write about your experience
behind the--the scenes, right?

Mr. LAZARUS: Well, I'm not the first clerk to ever write a book. In
fact, the chief judge of the Fourth Circuit, Wilkinson, he wrote a
book after he clerked. It was a very different sort of book in
that--that it--it wasn't as critical as my book is. But it isn't as
if clerks haven't written about their experiences before.

LAMB: Is there a code that says you can't write about it?

Mr. LAZARUS: Absolutely not.

LAMB: Why does everybody think there is?

Mr. LAZARUS: Well, there is, of course, a--a code that says when
you're at the court, you can't discuss pending cases with the press.
That goes without saying. But it--that--that code only applies during
your year there. But--but let me add this: There's--I don't think
this is relevant to my enterprise. What I did for five years was to
research and report about the Supreme Court. And that is true that I
developed sources among, you know, former court employees--I won't go
into w--who those people are--who did speak to me about things that
had happened. But I'm very careful in my--in the book not, for
example, to include substantive conversations between me and Justice
Blackmun and things like that because--and there is a confidential
obligation. It's not written in a code. It's--it's one that has to
be balanced against the public interest. And there is a strong public
interest here. But all relationships like clerk to justice have a
certain confidential aspect to them, and--and everybody has to make
his or her own judgments about balancing that and--and the call of
history.

LAMB: When you were a clerk, where did you sit?

Mr. LAZARUS: Well, in--in--in--each--each justice has chambers, and
that's hence closed chambers, of course. And the chambers is--is a
sort of suite of offices and the justice has a--his or her own office
and then there's an office for two secretaries. Then there are two
clerk offices, each one shared by two clerks right next door. Usually
there's an annex upstairs, too.

LAMB: And what kind of a day would you have?

Mr. LAZARUS: Well, we--we always started the same way, which is at
about 8:10 in the morning, the four clerks to Justice Blackmun and the
justice would go to the main cafeteria at the Supreme Court and we
would have breakfast together. And that was the ritual by which we
really came to know the justice. And amazing things happened at that
breakfast from Justice Blackmun singing the Dartmouth fight song on
key--and, you know, this is a man who was in his--I guess he was 80 at
the time--to--I remember the first morning that we had breakfast
together. It was a Monday. And I ordered pancakes. And he took me
aside very quietly so that the cook couldn't hear and said, `You know,
Eddie, I--the griddle goes stale over the weekend. You shouldn't have
the pancakes on Monday.' And--and, you know, this was the kind of
thing that developed almost a--a--a grandfather to grandson
relationship between the justice and--and me. And I remember
those--those breakfasts vividly and--and always will.

LAMB: And how many other kind of breakfast meetings were held at
other justices' offices, do you know? And that--what kind of special
things did--did they do with their clerks?

Mr. LAZARUS: It--it really varied. I know that the Chief Justice
Rehnquist--he and his clerks had the occasional tennis game and
Justice Kennedy, Saturday lunch was something that--that--it seems to
me that--that they did fairly often. Justice Brennan would have
coffee with his clerks in the morning, around 9:30. Each justice has
his or own--her own way of--of developing that bond of--of--of
cementing that family relationship that is, for one year, a clerk
group.

LAMB: Where are you now?

Mr. LAZARUS: I'm at the United States attorney's office in the
Central District of California. That's Los Angeles, which makes me
a--a federal prosecutor.

LAMB: How long have you been there?

Mr. LAZARUS: Just about six months. And I'm on leave now.

LAMB: And where--where were you born?

Mr. LAZARUS: I was born right here in Washington, DC, born and
raised, you know, till I was 18 and went off to college.

LAMB: Where'd you go to college for your undergrad?

Mr. LAZARUS: I also--to Yale. I took some time off in the middle
and actually started a--a previous book that I wrote about an American
Indian tribe's legal claims against the United States.

LAMB: And what did your mother and father do for a living?

Mr. LAZARUS: Well, my father was an attorney here in town. He still
is. And he represents Native Americans as--as basically 100 percent
of his practice. And my mother's a docent here at the National
Gallery, and she raised my brother and me and my sister.

LAMB: You say somewhere in your book that the biggest memory you have
of your court experience is watching the weekly recessional of
justices. What is that?

Mr. LAZARUS: Well, during the term, the justices meet in their
secret conference, usually on Fridays, to discuss the cases to decide,
to vote on which cases are going to be heard later on in the year.
And they--they walk--the inside of the court--it--it's--it's like a
cloister in a church almost, but there's a red carpet there that--that
the justices from that wing of the building walk along to the--to the
suite where they hold their conference, which is at the center in the
back, where the chief justice has his offices. And every week, one of
the things that I always remarked on was--was just watching the
justices walk.

And there are some images that really stick--stick with me, even
today, which--for example, Justice Kennedy, he was, I think, in his
mid-50s then, but he was brand-new to the court. And he would just
bound down the hallway. You could see the enthusiasm with which he
was coming to this job and--and--and really just feeling on top of the
world. And--and then you had the three octogenarian justices,
Blackmun, Brennan and Marshall, and the image I remember of--of them
is that they would come back out of conference and Brennan and--and
Blackmun would be in the front. And they're both short in stature
and--and were quite old, of course, at that time. And Marshall, who
was a very, very large man, would be right behind them and would be
walking--would be walking behind them. And you never could quite tell
whether he was sort of supporting them with a protective umbrella or
whether they were a little bit supporting him by holding him up. And
I think it captured a lot about our term, which was a term which was
sort of the--the--the decline of--of the liberal way.

LAMB: Where'd you get this picture of Justice Blackmun?

Mr. LAZARUS: That was printed, I think, in Life magazine.

LAMB: Where is it?

Mr. LAZARUS: That--oh, that picture is taken in the justices'
library. There is a small library on the second floor of the court
which is reserved for the justices. And that was Justice Blackmun's
second home. He was really the only one of the justices who used it
regularly. And he would sit up there and--and do his work.

LAMB: What's the cabal?

Mr. LAZARUS: The cabal was a group of conservative clerks, about 10
or so, who were at the court my year. They called themselves the
cabal. And this was--this was a group of--of very conservative clerks
who banded together, both socially and politically, to push a
conservative agenda at the court. They were--one of the things that I
describe in the book is--is a kind of civil war that was occurring in
our legal culture at that time. And I think it really continues
until--to this day. And in law schools, there's--there's a deep
division between those who believe in, for example, Bork's theory of
original intent, interpreting the Constitution according to the
framers' intent, and those who, more along the lines of Justice
Brennan, believe in a--a c--a more flexible living Constitution. And
this was a group of--of clerks who were really devoted to the
conservative Reagan-ite agenda and many of whom had clerked for Bork
and who were determined to push that agenda on the court, if they
could.

LAMB: What's the mastodon group?

Mr. LAZARUS: The mastodon group was a--a later sort of sh--somewhat
less organized reincarnation of that. But it--it's the same idea.
They--what I tried to describe in the book is the way both
conservative and liberal clerks, at that young age of 26, 27, 28, are
really driven by ideology. And clerks have--they play a secondary
role at the court. They're not puppet masters. But they play a very
important role. And I think sometimes ideology carries away clerks on
both sides and it just happens that the conservative clerks had much
more colorful names for themselves than the liberal clo--liberal
clerks did.

LAMB: You say that Justice Stevens--John Paul Stevens, 78 years old,
oldest member of the court right now, and Justice Scalia were the only
two justices that wrote first drafts on opinions. Is that right?

Mr. LAZARUS: Yes, that's--that right.

LAMB: What does that mean?

Mr. LAZARUS: Well, basically, what that means is that--and it varies
from chambers to chambers, the degree to which the justices are just
editing. But basically what it means is that--that law clerks, these
young--young people, greenhorns out of law school, have the job of
taking the justice's vote from conference and translating that into an
actual opinion that is going to be pored over meticulously by the
legal community. And one of the things I talk about in the book is
how when you're doing the first draft of an opinion, you make the
choices about what facts to put in, how to characterize those facts,
what cases to put in, how to characterize those cases, all kinds of
technical legal nuance that is going to be crucially important in
future cases and how that opinion is interpreted. And unless a
justice is unwrapping all of those choices, as he or she edits the
opinion, then too much responsibility is falling to that clerk. And I
don't think enough of the justices were really unwrapping all of those
choices.

LAMB: Your own boss, Harry Blackmun, didn't write the first draft?

Mr. LAZARUS: That's correct.

LAMB: And--are--are you be--being critical of him for not doing that?

Mr. LAZARUS: Well, I think in--implicitly so, although I will say
this, which is that Justice Blackmun was a meticulous editor.

LAMB: What's that mean?

Mr. LAZARUS: Well, he sat up there in that justices' library and he
went over every case, every--every nuance of that opinion. And I--and
it was certainly his product when it came out of our chambers. But I
still think that--that--that the idea of delegating the entire first
drafting process to a clerk is--is too great.

LAMB: What's the clerk-back channel?

Mr. LAZARUS: Well, that's--the clerk-back channel is--is my
shorthand reference for the way justices can use their clerks to
communicate things, to--to get a sense--for example, let's say you're
drafting an opinion on a close case and you really need a--Justice
Kennedy's vote. Well, one of the things that--that you may decide
you're going to do, as a justice, is you're going to have your law
clerk feel out Justice Kennedy's law clerk and say, `You know, here's
the way I'm thinking about going on this. How does your boss feel
about that? Do you have a sense?' And it--it's an informal way for
the justices to communicate in. One of the things that I felt
happened my year was that that informal channel of communication got
clogged up by the really bitterly divided ideo--ideological factions
that the clerks broke into.

LAMB: You cite an example of a cocktail party or some kind of happy
hour where it descended into drinking among the clerks and shouting
and shoving between--I wrote the names down here--two clerks, one
named Tim Bishop and one named Andrew McBride.

Mr. LAZARUS: Yes.

LAMB: When did that happen?

Mr. LAZARUS: At the end of the year...

LAMB: Who did they work for?

Mr. LAZARUS: At the end of the year, McBride worked for O'Connor
and--and Bishop worked for Brennan. Every Thursday afternoon, it
was--it was habit to have a happy hour at the court. That--that was
not unusual. It was a chance to unwind a little bit. And they
usually, at least in good weather, were--were--they'd take place
in--in the beautiful flagstone courtyards with a fountain that--there
are four of them at the court and--and they're just lovely. And
this--this was at the end of our term, and--and it was just a symptom
of--of the terrible divisions we were having. And the--the fact that
they actually broke out into, you know, a shoving match was really
just an emblem for how we really had felt about each other all year,
which was that the liberals were an--were frustrated and enraged at
what they saw as the conv--conservative ascendency. And I think this
is--you know, we were mirroring the justices in this.

But as a general matter in the legal world, conservatives think of
liberals as kind of weak sentimentalists, suckers for, you know,
prisoners' rights and--and, you know, highfalutin concepts that--that
really aren't very well grounded in the Constitution like the right to
privacy. And on the other side, liberals have come to think of
conservatives as eg--evil. I think that's what the Bork fight was all
about, that they--they don't give a damn about civil rights and they
want to roll the clock back 30 years. And--and they don't care
about--about due process, etc., etc. And--and y--as--as I show in--in
"Closed Chambers," this breakdown in the good faith that is necessary
for a court to operate was just palpable my term.

LAMB: Which justices--or two justices dislike each other the most in
the current court, from your knowledge of watching them?

Mr. LAZARUS: I really don't know enough about the current court to
answer that--that question. And personal dislike is something that I
think is very tough for a clerk to gauge. That's--we don't--we don't
really see that sort of thing. What was going on here, whether it
translated into personal dislike or not, were the kinds of accusations
it's very difficult to recover from. I mean, if Justice Brennan
accuses Justice Kennedy, as he virtually did, of being a racist,
in--in one particular case, Patterson, which I discuss in--in the
book--and--and the conservatives a--accused the liberals of basically
being hypocritical idiots. You know, it's really hard if that happens
over and over again to just let bygones be gy--bygones and pretend
that, `Well, we all really get along.' These--these charges were--were
heartfelt and--and--and so there were deep divisions.

LAMB: Let me ask you some simple questions, maybe for somebody who's
never thought about the court.

Mr. LAZARUS: Sure.

LAMB: How many justices are there?

Mr. LAZARUS: There are nine justices.

LAMB: How long is their appointment?

Mr. LAZARUS: They are appointed for life. And they are appointed by
the president, confirmed by the Senate, and once they're confirmed,
they can only be removed by impeachment.

LAMB: How many of them have to be lawyers?

Mr. LAZARUS: None of them have to be lawyers.

LAMB: Has there ever been a non-lawyer?

Mr. LAZARUS: Don't know the answer to that, to--to be honest.
I'm--I'm sure, in the early days, the answer must be yes. But it's
certainly been habit for a long, long time that they are lawyers.

LAMB: How much money do they make?

Mr. LAZARUS: I don't know their exact salary, but they're paid on a
typical government scale, and it--it's got to be--I mean, I--if I
guessed $150,000, I don't--can't swear to it, but it's not
a--a--it's--it's not a lot of money by the standards of what, of
course, they would make if they were in the private sector.

LAMB: What's an oral argument?

Mr. LAZARUS: An oral argument--the--the way a case proceeds to the
court--maybe I'll back up just a little bit. The first thing that
happens is that a--that a petitioner asks the court to hear a--his or
her case. And the court gets about 7,500 of those every year. Out of
that 7,500, they might hear anywhere from 85 or so, at--at a minimum,
to 150 my year.

And then what happens is they--they--once they're accepted, they brief
the case. So they su--submit written--each side submits a-a written
brief saying, `Here's why I think I ought to win.'

And then--and this is oral argument--each side gets one half-hour to
present their case to the court. So they come up there, they stand in
the well--it's--the--the courtroom is--is this gem of a--of a room,
the justices up on their dais in their leather chairs and rocking back
and forth. And they start out always with, `May it please the court,'
and they make their half-hour presentation. And the justices, to a
greater or lesser d--extent, depending on how interested they are in
the case, will pepper them with questions.

Then after the oral argument is over, the justices retire and either
later that day or later in the week, they meet together in their
conference and they take a tentative vote. They side that wins, the
majority, the senior member of that majority--so if the chief justice
is in the majority, it's--it's the chief justice; if it's not the
chief justice, someone else--assigns the majority opinion. And that's
how it goes.

LAMB: Would you put a label on the nine justices right now,
politically, or--or ideologically, as a court?

Mr. LAZARUS: As--as a court, I think it's--it's a conservative
court. I--I don't think anyone can dispute that. It's a co--a court
without a left wing, is real--is really what it is. I mean, Brennan
and Blackmun and Marshall, who were the liberals, ar--are really gone.
The two most liberal members of this court are both Republican
appointees. And that's John Paul Stevens, who was a Ford appointee
and certainly was thought of as a moderate when he was put on the
court, and David Souter, who was nominated by President Bush and
nobody knew much about him. He was thought to be conservative. But
on this court, he's a--emerged as--on the liberal side, but--but I'd
say it's a court with--with a center--a right of center and a right,
but no left.

LAMB: How many days a year does the court meet in session, where
people can go in and watch an argument?

Mr. LAZARUS: Well, it's three days a week, two weeks each month for
about six months. So I--I'd have to add that up, but it's--it's maybe
30 days.

LAMB: Do the justices work hard, in your opinion?

Mr. LAZARUS: Yes.

LAMB: How hard?

Mr. LAZARUS: Well, I can speak for my own boss. He was there before
we had breakfast every morning. I--I'm guessing he got in at 7:30. I
know 'cause I got in just in time for the breakfast, so--but I know he
was always there. And he would leave, oh, I would say, around 6:00 or
6:30 and he would take a huge stack of work home with him. He was at
the court almost every Saturday. And he was probably working at home
Sunday. I know I worked close to 100 hours a week. I bet the justice
worked a--you know, not far from that.

LAMB: Why did you call John Paul Stevens a FedEx justice?

Mr. LAZARUS: Well, what was I describing there is the fact that
Justice Stevens is an extraordinarily bright and personal
man--personable man. And what I was describing is the breakdown in
the collegiality and in the discussion process within the court. And
the problem with Justice Stevens, as I saw it, was that he spent a
great deal of the winter in Florida, that--he has a--a home down
there. And so he was really communicating to the court--I mean, I--I
used the shorthand, by FedEx. But the point there was he was--he
wasn't like a Brennan or a Marshall or a Blackmun who was really sort
of alienated from these--the crucial members of the court and that's
O'C--O'Connor and Kennedy. They're the swing votes. There wasn't a
lot of influence that was going to be exerted on Kennedy and O'Connor
by the left wing. They were just too--too alienated. And Justice
Stevens, on the other hand, had the pure brain power and--and the--the
sway. He--he had influence. But if he was in Florida, he couldn't
exercise it in the same way that he could if he were at the court.
And I felt that--that that was something--it was just alack. And it
was--I--it was a regret that he wasn't there.

LAMB: Who's the smartest member of the Supreme Court now?

Mr. LAZARUS: Oh, I don't whether I could--you know, I don't know
what their IQ scores are. I will say this that--that Justice Scalia
is a enormously powerful in--in--intellect. And he has a very
powerful writing style. And he's very sure of himself. And those
factors combine to make him extraordinarily influential. He has a--a
very steadfast view, although as I point out in the book, he--he's not
always consistent. But--but he puts forward a powerful ideology, and
he's--he's quick as can be. And--and that makes him very influential.

LAMB: What's a Ninogram?

Mr. LAZARUS: A Ninogram--of course, he's--he's known as Nino
someti--by--by those who know him. And he would send around these
memos, zingers really, on--on cases where he would set forth his view
in, you know, a page or two of extremely pungent prose. And at--at
the court, if it's after hours, the--a--a clerk will walk to each of
the nine chambers and slip a manila envelope under the door. That's
the way they distribute this--these things. And--and I just remember
those Ninograms w--would come, shhhwip, you know, slip right under the
door. And--and there it would be, this very powerful, often
h--hyperbolic analysis of the case. And that was a Ninogram.
And--and, of course, if you were on the side that Justice Scalia was
on, they--they were very welcome because they usually provided some
very cogent thinking. But if--if you were on the other side, they
were--they were darn infuriating.

LAMB: What's the Greenhouse Effect?

Mr. LAZARUS: The Greenhouse Effect--that--that takes its name
from--from Linda Greenhouse, who is The New York Times reporter who is
generally thought to be liberal in her inclinations. And that was
something that--I believe Terry Eastland coined the term, that
conservatives felt that Justice Kennedy was excessively concerned with
his public image, that he wanted, basically, for Linda Greenhouse to
like him. And he--he was an apostate from conservative positions on a
number of important issues. For example, school prayer--he--he was
thought to be in favor of voluntary school prayer, and--and yet, in a
crucial case, Lee vs. Weissman, he couldn't bring himself to overturn
the Supreme Court precedents which prohibit voluntary school prayer.
In--in a--in the area of abortion, he was thought to be in favor of
overturning Roe vs. Wade and returning the issue of abortion to the
states, but in Casey vs. Planned Parenthood of Pennsylvania, he--he
and Justice O'Connor and Justice Souter banded together to uphold the
basic principles of Roe, although they did cut back on Roe somewhat.
And--and so the Greenhouse Effect was the idea that the--what lay
behind these moderation--moderating forces in Kennedy's jurisprudence
was not necessarily principle but a--a view that--that he wanted to be
liked by the elite liberal press.

LAMB: You--you had this small item. A--a--you took it from another
publication but about Justice Powell when he was on the court that he
had said he'd never met a gay man.

Mr. LAZARUS: Yes.

LAMB: And he asked his--his clerk t--explain the whole story.

Mr. LAZARUS: Well, this was in--involved a case called Bowers vs.
Hardwick, a 1986 case. It's a--it's a well-known case where the court
ruled that Georgia could outlaw consensual acts of homosexual sodomy
that were conducted within the--within a home. And the case raised a
lot of the same issues that are raised in Roe vs. Wade, this idea of
a constitutional right to privacy and whether--whether those kinds of
consensual homosexual acts are protected. And Justice Powell, as he
often was when he was on the court in--in the mid-'80s and early '80s,
was going to be the swing vote on this issue.

And at--at conference and--and thereafter, he--he professed never to
have met a gay person. And he had this exchange with his clerk about
the--you know, sort of nature of--of homosexual arousal and--I mean,
he--he just did not have any empathy for the point of view of--of the
gay men involved in the case. And what--what I remarked on about that
was there's a much stronger case to protect consensual acts of--of
homosexual sex within a home under the right to privacy than there is
to protect abortion under the same doctrine. And the reason for that
is that it's in the home. And--and the co--and for years, the court
has given kind of a special place to the home; that that's in violate
against the--the probing eyes of the state. And yet, Justice Powell
supports the ri--right to privacy in Roe vs. Wade, but com--becomes
the crucial vote allowing Georgia to criminalize that kind of
homosexual conduct.

LAMB: But the--I guess the--the significance of this is that when he
asked the clerk, the clerk was gay, but he didn't know it.

Mr. LAZARUS: Yes. That's correct.

LAMB: Let me just read what--and this comes out of Jeffries...

Mr. LAZARUS: Yes. John Jeffries is a--wrote the authorized
biography of--of Justice Powell and who was a former Powell clerk and,
yes, he--this--this clerk was himself gay.

LAMB: The question was from Mr.--Justice Powell, `Are gay men not
attracted to women at all?' The clerk said, `They are attracted to
women, but there is no sexual excitement.' Powell then said, `None at
all?' The clerk said, `Justice Powell, a gay man could not get an
erection to have sex with a woman.' How did all that get into a book,
that--that exchange of conversation?

Mr. LAZARUS: I--I can only guess, but it is in--in Jeffries' book
about Powell, and I assume that he interviewed that clerk and that
clerk related that conversation.

LAMB: Here's a footnote that you wrote on page 228. `Many liberals
have harped on the Reagan administration's systematic effort to pack
federal courts with like-minded judges. It is difficult to pinpoint a
sound basis for objecting, however. Reagan was elected, in part,
because of an expectation that he would use the presidency's
appointment power to further his ideological agenda.' You've been
criticized for taking a liberal's view of the court. And those kind
of statements you make throughout the book--I haven't seen mu--mun of
that--much of that picked up. Are you surprised that people haven't
seen you put that other side to it?

Mr. LAZARUS: I am surprised. And--and as--for example, my portrait
of Justice Brennan is not the portrait that would be as favorable as
the typical liberal would give. What I tried to do in this book was
to step back from my own political point of view. It's true that
I--I'm probably left of center on--on--on judicial issues. But the
whole enterprise of the book was to step back, and--and what I've
tried to describe in the book is that both sides are at fault for the
civil war that we have in our legal culture and for the breakdown of
the deliberative processes inside the court; that there's become this
tit for tat between the liberals and conservatives. And so I--I
really cast blame on both sides. And that footnote is just one
example of where my--my views of something don't accord with the
traditional liberal view.

And--and let me just expound on that for a second, if I might, which
is the court is a political institution. It was designed to be. And
the way it reflects politics is through the nomination process. We
want our presidents--I--we elect them because we think that they have
a certain set of beliefs. And we think that their appointments to the
Supreme Court are going to reflect those beliefs. One of the problems
we have is it's also Congress' or the Senate's responsibility to
advise and consent to those appointments. And when you have a
disagreement between i--ideologically, let's say, between a liberal
Senate and a conservative president or vice versa, well, they have to
reach some kind of compromise candidate and that's appropriate because
the country is itself divided. But we shouldn't ex--you know, FDR put
on like-minded people. Many other presidents have. So--sometimes
they guessed wrong. For example, Nixon thought that my own former
boss was a conservative when he's--he turned out to be much more
moderate than--than Nixon might have thought. But there's nothing
wrong with a president saying, `I want somebody who's going to agree
with me up there on the court.'

LAMB: Are clerks selected for their biases?

Mr. LAZARUS: That depends on the chambers. There definitely is a
certain amount of that where being a member of The Federalist Society,
which is a conservative legal group, is very helpful in certain
chambers. And at the same time, being a--a--a liberal is--was--was
helpful in other chambers. And--and--but it's not--it's not a--a
sharp ideological split in every chambers. For example, the chief
justice, who, of course, is very, very conservative, he--he frequently
will have a liberal in his chambers.

LAMB: Well, you point out in the book that Anthony Kennedy, Justice
Anthony Kennedy, has a Harry Litman as--or had one--at one point a
Harry Litman as his clerk who had come from Justice Marshall's office.

Mr. LAZARUS: Yes.

LAMB: How can you walk out of Justice Marshall's office as a clerk
over to Anthony Kennedy's and do the same kind of work?

Mr. LAZARUS: Well, basically, if--if you have the right attitude
towards clerking, you can do it because the job--your job as a clerk
is not to, if you're doing it right, push your own political agenda on
either of your bosses, whether it's Marshall or--or Kennedy.
And--and, you know, Harry Litman was a superb clerk at the court, and
one of the reasons he was so good is that Harry is a superb lawyer and
he--he saw his job as basically being a counsel to the justice,
and--and that means putting forward your best view of the law, maybe
taking your best shot at what you think it ought to be also. But once
the justice makes a decision, it's your job to step into his shoes and
fulfill his mandate. And, you know, many, many liberal clerks will,
for the experience, want to work for conservative justices and--and
vice versa because it is just an irreplaceable experience. And I--I
know that Harry asked Justice Marshall's permission before he did
that.

LAMB: You h--also have a footnote in the back where you say--and
you're talking about, again, Justice Kennedy, `His conservative clerks
were so incensed at his votes in these cases that they declined to
work on the opinions, which d--Scalia would deride and dissent as
enormously self-satisfying but unmeasured and misdirected.' How could
a clerk refuse to work on a case?

Mr. LAZARUS: Well, I'm--I'm not really sure. I--I certainly never
did when I was clerking. But th--I--that is--my understanding was
that--that they were very upset with Kennedy and I--I don't know that
Kennedy was pushing them. I mean, maybe--maybe not. I--I don't know
exactly how that worked. But those--if I remember right, that--those
cases involve jury strikes. They were cases involving whether, I
believe, you could strike--for example, you could strike women from a
jury without violating the Constitution or whether a--the defendant
could object--I mean, whether the government could object if the
defense started eliminating jurors for reasons of--of race or gender.
And--and these kinds of cases were--Scalia hated the courts' rulings
in those areas and I do understand that some of the clerks felt,
`That's just not one I want to work on.' But I--I never experienced
that when I was there.

LAMB: How much do clerks make?

Mr. LAZARUS: In dollar terms? I don't know exactly how much they
make now. I believe we made just a little over $30,000 when I was
there. It's, by the standard of lawyering, a modest sum.

LAMB: And how many of the clerks have either a minority clerk,
meaning an African-American, or--not necessarily in the minority, but
a woman?

Mr. LAZARUS: The--th--USA Today ran a demographic study of this
which was surprising to me and--and a little bit disturbing. I think
the--if I remember right, the statistics were that four of the
justices had never had an African-American clerk, that the number of
minority clerks was astonishingly low for Hispanics and Asians as
well, that perhaps 25 percent--maybe a little less than 25 percent of
the clerks were women, which, given the percentage of law school
graduates from top law schools who are women now, is--is very low. I
think there is a tendency to hire, you know, who you're most
comfortable with and--and I think that's reflected in the numbers.

LAMB: Where did you get the idea to write your book?

Mr. LAZARUS: I started thinking about this book after the Clarence
Thomas hearings. "Closed Chambers" really emanated from--from two
things. One was a real devotion to the institution of the court
itself. I fell in love with the place when I was there. I, of
course, had a high regard for it before I was there. But at the same
time, I was quite dismayed by some of the things that--that I saw
there. And one of the cases I start out with may capture a bit of--of
what I'm talking about. This was a death penalty case where Justice
O'Connor was recused, so there were only eight justices participating.
It's called Tompkins vs. Texas.

LAMB: Why was she recused and what does that mean?

Mr. LAZARUS: To be recused means that she was--stepped out of the
case because perhaps she had a personal conflict of interest. I--I
don't know--you know, they don't have to publish the reason. I think
that her husband's law firm was handling the case pro bono for the
death row inmate and that may have been the reason, but--but it's not
something that is published on the record.

Now this was a case of a black man on--on trial for his life in Texas
for a--a--a--a terrible crime. He had abducted a woman very late at
night and gagged her and tied her to a tree while he used her bank
card to ro--to--to rob her teller machine. And--but we knew two
things about this case, or those of us who worked on it were
pretty--pretty sure about two things in this case. One was that the
prosecutor had eliminated all the blacks from this black man's jury on
purpose.

LAMB: What was his name, the black man?

Mr. LAZARUS: Tompkins. So Tompkins' jury was an all-white jury and
the blacks on the jury had been systematically eliminated. And the
second thing we knew, because there had been a confession in the case
that had been suppressed at trial but that we saw, was that there was
a very, very, very strong likelihood that this man had not done this
crime on purpose. The woman had choked on the gag, a horrible,
horrible death. But Tompkins carried a knife. If he wanted to kill
her, he could've done it very easily. In his confession, this man
was--was borderline mental retardate.

His--his--his confession rang true, and that was he just meant to tie
her up while he used the bank card and then she would be discovered.
And you're not supposed to get the death penalty either if blacks have
been eliminated from your jury or if you didn't kill intentionally.
That's the Constitution. And--and yet, this seemingly easy case, the
justices deadlocked, 4-to-4, which meant that the lower-court decision
stood and the lower-court decision was allowing this man to proceed to
execution.

And I just shook my head at this case. I did not--could not
understand how, in good faith, these eight justices reached a 4-to-4
deadlock on this case. And so part of the enterprise of the book was
to say, `OK. We got into a terrible spot here where the decisions
were so reflexive that this man was--was basically flushed through the
system. How did that happen?' And so I went back and through five
years of research and reporting I tried to describe how we got into
this terrible predicament of--of splitting apart ideologically within
the court so deeply that a 4-4 outcome was possible in a case like
that.

LAMB: I wrote a number of questions and I--there--there--I want to
ask you each one of them--and we haven't got a whole lot of time, so
if we could--you could give me just an example, then we can move on to
them...

Mr. LAZARUS: Right.

LAMB: ...simply because it covers the waterfront of--of--if you watch
the court--the court from the outside. What outside forces impact the
court? For example, the media. Are--are those justices and clerks
inside the court affected by the media in any way?

Mr. LAZARUS: Well, I think they are a little bit. I mean, after
all, Justice Kennedy invited a reporter to follow him around the
morning that he handed down Casey vs. Planned Parenthood of
Southeastern Pennsylvania. You have to wonder why if the j--if the
media doesn't matter. So, yes, I think there's some influence. The
marches on the court, we take--people take note of them. But it's not
a huge influence.

LAMB: What's the impact of mail? And you go into some length about
the mail that Justice Blackmun got because he--he wrote the Roe vs.
Wade opinion.

Mr. LAZARUS: I think it has a varying effect in different chambers.
I know Justice Blackmun read all of his mail because he felt this is
the people's court and he wanted to know how the people felt about the
court's decisions. That's not to say that it affected him like a
popularity poll would, but he wanted to have a feeling for what the
people were thinking.

LAMB: How much does the picketing and the marchers outside the
building matter?

Mr. LAZARUS: Not much. I don't think that--that that has an effect,
and I think there's almost a resentment because it's not supposed to
have an effect.

LAMB: How much ef--impact are the amicus (pronounced a-mi-kus)
briefs? And if it's not pronounced amicus, is it amicus (pronounced
a-mee-kus)? Which one--what's the right way?

Mr. LAZARUS: That's one of those legal words like voir dire, where I
think anything goes. But that--those briefs are friends of the court
briefs. They come from outside--not parties to the case, but
interested parties who then submit briefs. They can have an enormous
effect, particularly if it's an expert group like a group of doctors
in an abortion case or, you know, media interests in a First Amendment
case or--specialists in the field can often have a very great effect
through these amicus briefs.

LAMB: How long, in your opinion, from what you saw up close, should a
justice serve on the court?

Mr. LAZARUS: I don't think it's a question of a term of years, in
particular. I mean, Justice Thomas, of course, got onto the court in
his 40s. So it's--it's not a--a set term. But I--I do think that
although we speak in terms of life tenure for the justices, that
doesn't mean that they have to serve for life.

LAMB: And how much practicing do attorneys do before they stand in
front of the court for the oral argument?

Mr. LAZARUS: Well, I wish some of them would do more, but I think
the--the experienced advocates probably moot their cases two or three
times before they get up there. I know the solicitor general,
Se--Seth Waxman, has said that he has two moots before every argument.
And a moot is where he'll have a group of colleagues prepare for the
case and pretend that they're the justices and hammer him with as
tough a question as they can think of.

LAMB: You said in the book you get--as a liberal, you get depressed
watching all the conservatives be so active in the oral arguments.
And the question is: Do the oral arguments matter, in your opinion?

Mr. LAZARUS: I think they can matter. I think that they're not
only--you know, justices can ask the lawyers to answer some nagging
question they have about the case, but I think the justices themselves
seek to educate one another on the bench. I think that in oral
argument Scalia is trying to get to Kennedy and O'Connor and--and--you
know, and say, `This is how I'm thinking about the case and you've
gotta be able to answer this if you want to come out the other way.'

LAMB: How about the Thurgood Marshall papers that were released? Why
were they released so early and what impact did they have on your
book?

Mr. LAZARUS: Well, they had an enormous impact on my book because
this was--the Thurgood Marshall papers, which are in the Library of
Congress, open to--to everyone. These contain all of these internal
drafts, the memoranda that circulate among the justices...

LAMB: The Ninograms?

Mr. LAZARUS: The Ninograms, absolutely. All of that is in there.
It's a tremendous resource for anyone interested in the court and it
was opened up shortly after--well, immediately upon Thurgood
Marshall's death, which was just a few years after he retired from the
court.

LAMB: Why so early?

Mr. LAZARUS: Because the--the way they were given to the Library of
Congress was, `These should be opened upon my death.' Perhaps Justice
Marshall thought that he was going to live a number of more years, but
this wa--this was the way he deeded those papers.

LAMB: And how much time did you spend with him?

Mr. LAZARUS: I spent dozens and dozens and dozens of hours.

LAMB: And you can go right into the Library of Congress...

Mr. LAZARUS: Yes.

LAMB: ...bring them out to your desk? You can look through all this
stuff?

Mr. LAZARUS: Right. You just--there's an index there. You can
determine what boxes you want to look through. They'll bring you the
boxes. You can photocopy what you want. And so anyone interested in
the court can go there and see all the internal workings of the court.

LAMB: What startled you when you look back--of going through those
papers and you all of a sudden had your hand on something and you
said, `I can't believe what I'm reading'? Anything?

Mr. LAZARUS: Yes. It's an old document but one that I had never
heard of, which was when Justice Douglas, very late in his time on the
court, had had a stroke and was--but was trying to hang on desperately
to his seat as a justice. The ju--the other justices banded together
and agreed in a signed document that if any case came down to 4-4,
where Justice Douglas' vote was crucial, they'd move it on to the next
term and reargue it. So they basically neutralized Douglas' vote in
an internal agreement. And that paper was there in the Marshall
papers.

LAMB: Now you get into some detail on the Webster case. Just tell us
what that is first, please.

Mr. LAZARUS: Webster vs. Reproductive Health Services was a
referendum on Roe vs. Wade in 1989.

LAMB: And how did it come out?

Mr. LAZARUS: It came out as a mishmash. The chief justice, joined
with--with three others, said that--not that Roe was overturned but
that a lot more abortion regulation was permissible. The liberals on
the other side were saying Roe is what Roe has always been, very
little regulation allowed, and O'Connor in the middle basically
dodging all the issues.

LAMB: You go into some detail about the letter that was circulated
only to the conservative justices from Chief Justice Rehnquist that
you wouldn't be able to find in those papers of Thurgood Marshall.
How did you find out about this?

Mr. LAZARUS: Like any journalist. Years after I left the court, I
discovered that things had happened I didn't have any idea about when
I was there and that there was documentary evidence to back it up.
And I pursued that documentary evidence.

LAMB: And what did you find?

Mr. LAZARUS: What I found was--is that the conservative group at the
court was caucusing behind the backs of the liberals trying to reach
some agreement before they would circulate anything to the liberals.
And in that caucus, the chief circulated a draft that he was hoping
everyone would sign on to and Justice O'Connor wouldn't sign on. The
other thing that was discovered is that Justice Kennedy actually
wanted at that time for Roe vs. Wade to be overturned. He later
changed his mind.

LAMB: Had you ever done anything like that among the liberals,
circulate a--you know, a--a letter like that just among the people
that would agree with you?

Mr. LAZARUS: I had never seen anything like that in a liberal
chambers, although in the Patterson case, which was a civil rights
case that term, there are some internal liberal circulations that are
in the Marshall papers that--that I did not know about.

LAMB: You write that Chief Justice Rehnquist was deceitful and
surreptitious with Webster.

Mr. LAZARUS: Yes. That was--that was my judgment. It was also the
judgement of--of Justice Stevens, who said he was trying to drop Roe
off the back of a fast-moving train or something to that effect. What
had happened in that case is the chief circulated a draft which, in
its terms, claimed that Roe still stood. But because of the way it
was written, in terms of the technical, legal wording of it, would
have just torn the entire guts of Roe out. And so, right, I--I felt
that that was a very surreptitious and inappropriate way to try and do
away with the most important case of the last 25 years whatever one
thought of Roe vs. Wade.

LAMB: Now when you were in there, Thurgood Marshall, William Brennan,
Bryon White and Justice Powell and also Justice Blackmun were there.
They're not there any longer. So let me ask you about the four that
are remaining. How much contact did you have with Chief Justice
Rehnquist and what was your opinion of him?

Mr. LAZARUS: Not--not much personal contact. You get to have lunch
with--with the chief as a--the Blackmun chambers went--took him to
lunch and, of course, you'd see him around and--and whatnot. But my
complaint with the chief justice throughout the book is that he does
not believe in deliberation and debate. He doesn't think people's
minds get changed. And I think that that's fundamentally at odds with
the way the court ought to operate.

LAMB: Well, to pick you up on that, the conference that you say is
held on Fridays...

Mr. LAZARUS: Mm-hmm.

LAMB: ...is held where?

Mr. LAZARUS: It's held in a room that's sort of in his suite of
offices.

LAMB: You got a picture in the book of that.

Mr. LAZARUS: Yes, I do, right.

LAMB: And who goes to that conference?

Mr. LAZARUS: Only the justices themselves.

LAMB: So nine people usually in that room?

Mr. LAZARUS: Correct. And the junior justice shuts the door against
the outside world.

LAMB: And how do they sit at that conference table?

Mr. LAZARUS: I think that they, at one time, sat by seniority, but
it may have been--it may not be strictly so. There may be justices
who want to stay in their spot or whatever.

LAMB: Oh, say, take a big case like the Webster case. Did they have
a debate in that room over that case?

Mr. LAZARUS: M--my sense of it w--was, and as I write in the book,
is that--that the--the debates--the--the conferences during--during
that time were basically an expression of views, not a debate. You'd
go around the table, each justice would say what he or she thought,
there would be a vote, and that would be it. And Justice Scalia has
publicly spoken about this, that--that there is not an exchange of
views and that people's minds do not get changed in conference. And
it seems to me that that adds to this atmosphere of division when
you're not really trying to engage the other side seriously and
say--you know, there are good points to be made on both sides and they
need to be taken account of and the court--the court wasn't doing
that.

LAMB: So if there's no debate in that room--or how--how long would a
conference last on one subject like the Webster case, do you think?

Mr. LAZARUS: Not nearly long enough. Maybe--maybe only half an hour
or so.

LAMB: If you vote for or against it, can you change your vote?

Mr. LAZARUS: Oh, yes, you can change your vote, but part of the
problem is that the way the--the--even--even after opinions got
drafted, there was far too little debate and discussion. It wasn't
like an opinion came around and there was a--a whole hullabaloo over
its details. There was a strong tendency, and you can see this in the
Marshall papers 'cause you can see the dates when people sign on--an
opinion come around, and within a day or two, everybody on that side
would've signed on. The dissent comes around months later. It's
already a fait accompli. There's no real engagement on the crucial
issues.

LAMB: Once the decision's made and the actual opinion is written, how
many people have access to that before we in the public get to see it
from the court?

Mr. LAZARUS: To the draft opinions? Well, they--those...

LAMB: To the final--you know, once you've decided the case and the
final decision is made...

Mr. LAZARUS: Mm-hmm.

LAMB: ...do you all have access to that?

Mr. LAZARUS: Oh, yes, 'cause these drafts are coming around and--and
you--everyone in the chambers sees those.

LAMB: Why aren't there more leaks?

Mr. LAZARUS: Well, I think because people take their responsibility
extremely seriously, that if--if you had a leak--I mean, the 10th
justice of this novel is about such a leak--it could change investment
policy depend--if it were a business case, hundreds of millions of
dollars could be at stake. You know, it's--it's absolutely essential
that during the court's deliberations nobody know, and people at the
court take that very, very seriously. It's a very small community and
people understand that. It's happened. There have been leaks but
really very few.

LAMB: Justi--Justice Sandra Day O'Connor--what's your opinion of her?
How much did you see her when you were at the court?

Mr. LAZARUS: I saw her a--a bit more than I saw the chief. A very
brave woman. She was ill our year with breast cancer, as--as people
know, and I--I just was admiring of--of her fortitude. I'm not a huge
fan of her jurisprudence, which I think is very idiosyncratic. She
holds that center position at the court and so often her views really
just come down to what she thinks about a case. And--and I think that
holds the Constitution hostage to her own personal views.

LAMB: On page 415 you talk about Justice Scalia's brutal attack on
Sandra Day O'Connor. What was that about?

Mr. LAZARUS: Well, that was in the Webster case sh--when she did not
join Chief Justice Rehnquist in--in cutting back sharply on Roe.
Basically, Justice Scalia let her have it with both guns, and--and
some of what Justice Scalia said was warranted because, in that case,
Justice O'Connor's whole opinion was based on the idea of judicial
restraint, `We won't ever step outside the narrow confines of a case
to speak to an issue more broadly.' And as Justice Scalia pointed out,
when it suits her, Justice O'Connor does that with some frequency.
And one of the things I complain about in my book is if you're going
to be a person of judicial restraint, you have to be--be that way when
it suits your personal views and when it doesn't suit your personal
views. You can't flip 'em around like cards in a deck.

LAMB: You write on the same page, `By common account, she admired the
sheer power of Scalia's brain and coveted his approval, but she also
had a certain patrician pride, a self-image that placed her above the
nastiness in which Scalia seemed to revel.' How much does he revel in
nastiness?

Mr. LAZARUS: Well, you can read his opinions. I think that
there's--there's rarely been a justice who so regularly takes after
his colleagues in--with the tone of disapproval that--that Justice
Scalia has in his opinions.

LAMB: Why do you think he revels in it? Do you have any--did you get
close to him at all?

Mr. LAZARUS: No, I--I don't know. I--I think that he is someone who
cherishes the turn of the phrase, where he can--he--he does have the
ability in print to write things that--that just skewer people. And
he's very effective at it and--and he seems to enjoy doing it.

LAMB: Was there a time when clerks would get into other people's
e-mails when you were there?

Mr. LAZARUS: Get into other people's e-mails? No, I don't think so.

LAMB: Yeah. I mean, they didn't try to break the--wa--was there
back-channel e-mail discussions between the different clerks?

Mr. LAZARUS: Well, there was--there was certainly e-mailing back and
forth about lots of things from, `Where are we gonna go to dinner
tonight?' to--to more substantive matters.

LAMB: You say that, `I have no doubt,' this is you writing, `Harry
Blackmun has been the most empathetic justice in recent times and very
likely in the history of the court.' What are there are, 110, 111
justices in our history?

Mr. LAZARUS: Yes. Well...

LAMB: In the history of the court?

Mr. LAZARUS: Well, he has a particular way, or--or did when he was
sitting on the court, of empathizing with individual defendants or--or
petitioners who came before the court. And there was a famous case my
year involving a--a little boy who--who had been beaten severely and
he began his opinion, `Poor Joshua.' Now I don't think there's ever
been a justice--maybe there has, I've never done a lexis search--who
had that kind of individualized feeling for the parties to the cases.

LAMB: Have you ever seen Justice Blackmun mad?

Mr. LAZARUS: Oh, yes, sure. I mean, he's--he's like anyone else.
He gets angry...

LAMB: I mean, does he get irritated about other justices?

Mr. LAZARUS: You know, like--like--it's a human institution,
and--and I think every justice, the--the emotions run the gamut. And
Justice Blackmun is someone who--you know, he--he ran the gamut
from--from sheer joy to--to frustration and anger like anyone else.

LAMB: Do you think we'll ever see the Supreme Court of the United
States televised?

Mr. LAZARUS: I think we will. I think it's inevitable that it will
come. But the justices certainly stand firmly against it. I--I can't
for the life of me understand why it's not appropriate to televise
those or--oral arguments.

LAMB: How much did the Bork hearings have an impact on their thinking
on television, from what you saw?

Mr. LAZARUS: I think some. I think that--that the fact that he did
not come across well on television may have struck them as, `Hey, how
am I gonna come across on--on television?' But I--I think the effect
of the Bork hearings was--was much broader than that, which is that
this kind of political campaigning about whether somebody's going to
get on the court or not was, I think, in the view of the court,
unseemly and damaging.

LAMB: You say that, `Years later, I'm still glad Bork lost.'

Mr. LAZARUS: Yes.

LAMB: All right. This is a quote from you, "But there is lasting
damage that liberals approach--that--that the liberals' approach
visited on the court." Lasting damage and--expand a little bit on
that.

Mr. LAZARUS: Well, the--the fact that the liberals were willing to
go to almost any length to stop him. And that is taking
jurisprudential positions that--that really don't hold up very well to
the kind of--taking all the nuo--nuance out of Judge Bork's position
so that he was caricatured. And I think it basically taught the
conservatives that the liberals would go to any lengths to protect
themselves. And as a consequence, I think conservatives felt, `We're
gonna fight fire with fire.'

LAMB: Do you think that Justice Bork is a felon? You say in there
that the liberals thought that he had j--they'd just confirmed a
felon.

Mr. LAZARUS: Oh, no, with Jus--Justice Thomas, you meant.

LAMB: Yes. I'm sorry, yes, Justice Thomas.

Mr. LAZARUS: Yeah. Do I? No, but I--but I think--that was--you
know, there's been a--there was a lot of vague talk in the liberal
press about how, oh, he had lied about n--not only the--the Anita Hill
situation, but that he had also lied when he said that he had never
discussed Roe vs. Wade during law school, whi--I guess it was handed
down when he was in law school. And, I mean, I--I think that--that
throwing around charges like, you know, he's a felon is--is--is
reckless.

LAMB: What would you change at the court if you could?

Mr. LAZARUS: Well, I w--I guess I--what I would change would be the
entire deliberative atmosphere, and I think perhaps it is changing a
bit for the better--I mean, because there are four new justices since
the time I left. Those justices--Ginsburg, for example, Breyer,
Souter--are people with a very strong sense of the institution itself.
I think I would infuse the place with a greater feeling of self-doubt,
that, you know, `Hey, maybe--maybe I'm wrong in what I think. I want
to think about what the other side has to say.' Foster more debate
and--so the ma--basic thing I would change would be in the souls of
the justices. They'd just have to do a better job.

LAMB: And what do you--when you go around, what do you find that
people don't know about the court or what mis--you know, what--what
misunderstandings, the big ones, do you find among the public at
large?

Mr. LAZARUS: Well, I think, for example, that most people would
think that these--in the death penalty cases there's a kind of, you
know, meticulous evaluation of every case before someone's put to
death. That just doesn't happen. I think that--that the--there's a
kind of idealized image of this Mt. Olympus. It's a human place and
we need to think carefully about whether it's doing its--its
constitutional job in the way we want it to.

LAMB: Do you have any idea what that picture is right there on your
cover?

Mr. LAZARUS: No. I--I don't know that it's an actual photograph of
anything, but it--it seemed to me to be a--a justice contemplating the
world in isolation and I think that--that there's a lot of that that
goes on.

LAMB: Are you surprised at all at what people's reactions have been
to the book, or lack of reaction? Either one? Did you think...

Mr. LAZARUS: I'm--I'm surprised that s--people are so concerned
about the issue of whether the book ought to have been written as
opposed to what's really in the book. I don't think that there can be
a question about whether a serious book, looking at the way the court
handles these crucial issues, really, you know, is an appropriate
thing to have done. It--it--it has to be. And--and--and people need
to think hard about the processes inside the court. So I'm a little
surprised that there's so much hoopla. But one reason there is, is
that I think by being so critical I've stirred up a lot of interest.

LAMB: And who is this?

Mr. LAZARUS: Oh, that's my wife, Amanda Muss, who stood by me for
every day I worked on this project.

LAMB: Do you have another book in mind?

Mr. LAZARUS: I do not.

LAMB: And when you go back to your full-time job as a prosecutor,
what do you--what do you expect to do after that? How long do you
expect to do this?

Mr. LAZARUS: Oh, I expect to be a prosecutor for a while. It's a
magnificent job. There is nothing so satisfying as walking into court
and saying, `My name is Edward Lazarus and I represent the United
States.'

LAMB: Here is the f--cover of the book. It's called "Closed
Chambers," and our guest has been Edward Lazarus, "The First
Eyewitness Account of the Epic Struggles Inside the Supreme Court."
Thank you very much for joining us.

Mr. LAZARUS: Thank you very much for having me in.

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Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court