True Compass (34 page)

My visits to the hospital had attracted press attention, and few secrets can be kept in great urban hospitals. I decided to prevail on the essential humanity of the reporters, who were by now asking insistent questions. I told them the facts, but asked them not to print their stories until the following day, when the operation would occur. The reporters said they would comply. Just in case someone had not heard of the agreement or elected to ignore it, I removed Teddy's radio and TV set. I made the excuse that we were offering them to other children in the hospital who could not afford such luxuries.

Because of Teddy's lingering cold, the doctors postponed the surgery again, until 8:30 Saturday morning. This posed a distressing new dilemma. Saturday, November 17, 1973, was a date I'd circled on my calendar many months ago. My niece Kathleen was to be married on this day: Kathleen, the sparkling, great-hearted eldest child of Bobby and Ethel. Kathleen, named in honor of our late sister "Kick," the eldest grandchild of Joe and Rose and the first to be wed. Her thick shock of raven hair has always reminded me of Bobby, as has her devoutness, her curiosity, and her passion for public service.

At 11 a.m. on this day, Kathleen was to marry David Townsend, then a doctoral candidate at Harvard in history and literature. The church was Holy Trinity, where Jack had worshipped during his time as president. I had promised to give my niece away at the ceremony. Kathleen had offered to postpone the wedding after she'd heard about Teddy's operation schedule, but I dissuaded her. I wanted nothing to cloud her memories of this milestone in her life. But the delay in Teddy's surgery caused me anguish. I needed to know that my son was going to be all right before I left the hospital.

At around ten that morning, the doctors appeared from the operating room to announce that the surgery had been a success and Teddy, still anesthetized, was well out of danger. Only then did I rush the several blocks to Holy Trinity to walk Bobby's firstborn down the aisle on her wedding day. As soon as the nuptial mass was over, I rushed back to the hospital.

As difficult and painful as the surgery and the loss of his leg were for him, Teddy's positive and upbeat nature carried him through his recovery and rehabilitation. But even as Teddy was working hard on his exercise regimen and enjoying visits by special guests (the entire offensive line of the Washington Redskins, for example), the doctors were revisiting their conclusion that his cancer was strictly chondrosarcoma. Pathology lab results showed dreaded bone cancer cells indeed present in my son's tumor.

This fresh blow to my hopes for Teddy left me stunned at first; but a more aggressive emotion quickly took hold: defiance.
If the cancer has escalated, we'll escalate back
. However unwittingly, I began to form the template for future counterattacks against the disease in my family, including my own test thirty-five years on.

I got on the phone and called doctors from around the United States who I knew were working on experimental forms of treatment--doctors I'd gotten to know in our shared crusade for cancer funding. I convened a meeting at my home in McLean. The practitioner whose results seemed the most promising to me was based right in Boston: Dr. Edward Frei III, of Children's Hospital. In this period before the general advent of chemotherapy, Dr. Frei had found success administering a drug called methotrexate, which destroyed cancer cells efficiently. (Sidney Farber was experimenting with this drug in the 1940s as well.)

The other doctors agreed on this treatment, and on February 1, 1974, my resolute twelve-year-old commenced a rigorous pattern that would be repeated without interruption over two years. Every three weeks, I would fly with Teddy from Washington to Boston, where he would endure six hours of lying nearly motionless in his hospital bed while a needle dripped medicine into his bloodstream, followed by another long period of citrovorum injections. The entire process covered three days.

Helping Teddy recover took precedence over every other activity in my life, including my duties in the Senate. I slept beside him in his hospital room. I would hold his head against my chest when the nausea overcame him. In time, I learned the technique of injecting him myself, so that we could cut the visit short by a day and get him into his classroom on Monday mornings.

My many hours at Boston Children's Hospital were precious in another way. While Teddy was asleep or in treatment, I wandered the halls and the waiting rooms, and sought out other parents who, like me, were keeping vigil over terribly ill sons and daughters--many of them with the dreaded osteosarcoma. These were mostly working people: salesmen, secretaries, laborers, teachers, taxi drivers. Their long hours and modest savings allowed them to raise their families comfortably and with hope--until catastrophe struck. It was in these conversations that the inhumanity of our health care system truly hit home to me. We shared common ground in our anxieties about whether our children would live or die, or survive with debilitating frailties. But for my new friends, this was only one terrible part of a larger nightmare.

Teddy's treatment, like that of the other children suffering from cancer, was free in the first six or seven months, because it was part of an NIH experimental grant: a clinical trial with uncertain results, to which we had all agreed. The results in fact proved highly promising for all the young patients, a dividend of the rise in research funding. But this happy news brought with it a heartbreaking downside: once the usefulness of the treatment and medicines had been verified, the experiment ended, and the patients' families were billed for the remaining treatment.

I will never forget sitting down and listening to those parents. Suddenly they were faced with finding a way to scrape up three thousand dollars for each treatment. The treatments were necessary every three weeks for two years. These families were terrified. They could not begin to afford it. They would tell me of being reduced to a grim, almost macabre calculus: How much of a chance, they would ask the doctors, did their children have if they purchased the resources for only a year? Or eight months? Or six months? They were not being stingy. They were bargaining based on how much they could afford. Many had already borrowed to the limit. Others had sold or remortgaged their homes. Several had run the risk of being fired from their jobs for the crime of taking time off work to be with their son or daughter. In a few cases, debt or bankruptcy was compounded by the knowledge that the child would never recover: the illness had no cure, because funding in that field remained inadequate.

I began directing my Senate health committee's work toward the realities of lives such as those: the uninsured, the underinsured. I held hearings--but not always just ordinary hearings. Whenever feasible, I would take my committee and witnesses to hospitals in rural and inner-city neighborhoods. I wanted my colleagues to be taken out of their comfort zones, as I had been taken out of mine. I wanted them to experience the ravages of preventable illness and death as I'd learned to experience them: not as abstractions on a printed page, but as blood, and bandages, and needles, and wails of pain down a hospital corridor, and tears, and mourning.

The field hearings did not produce instant, dramatic results--cries of empathy from hardheaded Senate conservatives, a raft of new legislation, fresh winds of enlightened consensus. I never assumed that they would. I had no illusions about the battle for health care. But now that battle had my complete attention. I had even won an early fight in it: my son would live.

CHAPTER SIXTEEN

Nixonian Radicals

1969-1973

There was not much reason for me to distrust Richard Nixon at the outset of his presidency. The early stages of my acquaintanceship with him were congenial. He was both interesting and entertaining. In the spring of 1953, when I came home from the army, I went down to Washington to visit my brother the new senator, and Nixon, the new vice president, spotted me in the Capitol. (As president of the Senate, the vice president has an office in the Capitol building.) He invited me in, and we spent a cordial forty-five minutes in conversation.

Jack liked him as well back then. My brother and Nixon had both been elected to Congress in 1946, and the two of them would often chat and joke with each other. Jack respected that Nixon was also a navy man, and he found him to be intelligent and pleasant. I suppose that neither of us had been paying all that much attention when Nixon ran his lessthan-pleasant campaign for the Senate in 1950, which he won by attacking his Democratic opponent, Helen Gahagan Douglas, as a communist sympathizer and dubbed her "the Pink Lady--pink right down to her underwear."

In later years, Nixon did not feel quite so pleasant toward me or members of my family. He was bitter over his narrow loss of the presidency to Jack in 1960. And he had lost the governorship of California to Pat Brown just two years later. Still, he came back again to win the presidency over Hubert Humphrey in the rubble of all that had disintegrated in the year 1968. He won by less than a percentage point, as the third-party candidate George Wallace of Alabama swept five traditionally Democratic states in the Deep South and pulled away more than 13 percent of the total votes.

It was clear I'd infuriated Nixon with my May 1969 speech denouncing Hamburger Hill and, by extension, the Vietnam War policies that he now administered. Almost immediately after that, I began tangling with the administration over a series of Supreme Court nominations that I and others felt were antithetical to the court's independence from ideology. My base of operations was an obscure Judiciary subcommittee that I had agreed to chair in that same year: Administrative Practices and Procedures.

In the past, "Ad-Prac" wielded little legislative influence, and few people outside the Senate even knew it existed. But my growing understanding of the ways the Senate operated told me it had the opportunity to be otherwise. It was true that Ad-Prac had statutory jurisdiction over only a small number of areas. But as I discovered, it enjoyed a surprisingly broad mandate--essentially the entire federal bureaucracy--for administrative oversight. Over the ensuing years, our subcommittee was able to change federal policy in varied and substantial ways. For instance, with the help of a young staffer who served as special counsel to the committee in 1974, we deregulated the airline industry and abolished the Civil Aeronautics Board. That young staffer was Stephen Breyer, now associate justice of the United State Supreme Court.

My opposition to the administration's policies was not personal, but Nixon took things quite personally indeed. I quickly drew his distaste, as well as his need for control and vengeance. By 1971, although I didn't know it at the time, I was a member of his infamous "enemies list." Since the tally of those "enemies" eventually reached forty-seven thousand, I was never really able to savor a sense of prestige at being included, even after I found out about it.

In May 1971, the president directed his chief of staff, H. R. Haldeman, to wiretap my telephones, along with those of Ed Muskie, Hubert Humphrey, and several other Democrats. He also had assigned his operatives to research and put their own spin on the Chappaquiddick tragedy to maximize the damage to my reputation and perhaps end my Senate career. He ordered his aides to plant two spies within my Secret Service detail. Their assignment would be to catch me in the company of another woman. It is not clear whether that directive was ever carried out. A batch of recently released papers from the Nixon Library included one of Haldeman's notes, reminding himself, "Get him--compromising situation.... Get evidence--use another Dem as front."

As to Nixon's Supreme Court appointments and his other misadventures with the Constitution:

My daughter Kara not long ago gave me a lovely Christmas present:
200 Notable Days: Senate Stories, 1787 to 2002
. It was written by the splendid Historian of the United States Senate, Richard A. Baker. Its narratives contain several references to James Madison's seminal
Notes of Debates in the Federal Convention of 1787
, the event known familiarly as the Constitutional Convention. Madison shows clearly that the last major decision on the appointing of justices effectively divided the responsibility between the president and the Senate. This principle--"advise and consent" is its familiar label--is far too often overlooked during consideration of appointments to the federal bench. The president is usually able to convince the American people that he has sole authority and responsibility for these appointments, and that unless one can find an egregious circumstance, the overwhelming requirement on the Senate is to defer to the president and approve the nominee. But the Founding Fathers did not intend it that way. Quite significantly, they stipulated that justices would have
lifetime appointments
--which implies enormous responsibility for interpreting the Constitution. To help regulate that responsibility, they provided for the utmost deliberation, and assigned that deliberation to the Senate.

These different views on the standards for confirmation didn't really come into play, however, until Richard Nixon put them to the test. Prior to his administration, nominations were made based on suitable judicial temperament, experience, integrity, independence, and knowledge of the law, and there was a strong bias in favor of confirmation. Nixon skewed the process, however, by substituting political ideology for judicial independence. For many of us, that change in nomination procedures meant a change in the level of confirmation scrutiny.

The first confrontation erupted in July 1969, just six months into the administration's first term. Abe Fortas, a liberal-leaning associate justice and close friend of Lyndon Johnson, resigned from the Court after questions arose over a retainer he had accepted from a financier friend who later went to prison for securities violations. Nixon's choice as a replacement was a solid southern conservative: Clement Haynsworth of South Carolina, then chief judge of the Fourth Circuit Court of Appeals. This was the same Clement Haynsworth who had been a judge in Tunney's and my winning moot court argument at the University of Virginia back in 1959. He was the first southerner to be nominated to the high court since 1942.

The early support for him was strong, and consensus had it that he would be easily confirmed. But almost immediately, several civil rights groups declared their intention to oppose him. They charged that Haynsworth had contrived to undercut the mandates of
Brown v. Board of Education
at a time when the law required him to expedite school desegregation. They also pointed to his judicial opinion upholding the right of a hospital that practiced hiring and patient discrimination to receive federal funds. There was also strong opposition from organized labor. In my questioning, I handled the nominee gently at the outset. Anticipating that he would refuse to discuss specific cases, I tried to elicit whether Haynsworth was sensitive to the dynamic social forces of the times, and in particular with the grievances of the young, the poor, and the minorities of America. If he showed that he was not, I reasoned, one could argue that his votes on freedom of speech and defendants' rights might reflect his indifference, if not hostility, to such forces.

Haynsworth saw it coming. We fenced carefully. I tried several variations of my inquiry. How did he view the frustrations of young and poor people? What did he see as the underlying causes? But the dignified Haynsworth stuck to artfully bland responses. The committee voted to recommend confirmation by a vote of ten to seven. I coupled my dissenting vote with a request to President Nixon that he withdraw the nomination. Media and public opinion had by now turned sharply against Haynsworth, and some Republican senators joined me in this request. Nixon refused. In the sharp floor debates that followed, there were allegations of a conflict of interest, and Democratic and Republican support for the nominee further eroded. In November his confirmation was rejected, fifty-five to forty-five, with seventeen Republicans, including several members of their leadership, voting no.

The Senate's repudiation of the president's chosen candidate for the Supreme Court sent shock waves through Washington. It was a game changer. A president's nominees would no longer be rubber-stamped by a compliant Senate.

The defeat exposed Nixon's deeper propensities for control and revenge. The outraged president vowed in effect to stuff his next nomination down the Democrats' throats. He is reported to have ordered an adviser to "go out this time and find a good federal judge further south and further to the right." Nixon's reasoning was that the Haynsworth defeat had given him carte blanche: liberal Republicans would not dare buck their president in a second straight confirmation process, and many Democrats would feel equally reluctant--enough to make a second repudiation next to impossible.

Nixon's designated adviser was Harry Dent. Dent was the conceptual thinker behind Nixon's "Southern strategy" of increasing his base and converting Democrats in the South by assuring them that he would not force civil rights laws on unwilling states.

Dent went out and found G. Harrold Carswell, a U.S. Court of Appeals judge from Tallahassee, Florida. Florida newspapers promptly published a speech Carswell had made in 1948 while campaigning for the state legislature: "I believe that segregation of the races is proper.... I yield to no man in the firm, vigorous belief in the principles of white supremacy."

The day after the Florida press disclosures, a damning bill of particulars surfaced via the offices of Marian Wright Edelman, the visionary activist lawyer and founder of the Washington Research Project and the Children's Defense Fund, who had warned us that we were making a mistake when the Senate confirmed Carswell to the 5th Circuit without a serious fight in June of 1969. Listing Carswell's efforts to slow desegregation in Florida schools, his uncivil manner as a judge toward black lawyers, and his refusal to hold hearings on habeas corpus petitions involving black defendants, Edelman and her fellow lawyers concluded that Carswell had been "more hostile to civil rights cases than any other federal judge in Florida."

Nixon's tactical calculations were uncomfortably close to the truth, at least at the outset. At a meeting on January 23, 1970, Birch Bayh, Joe Tydings, and Phil Hart agreed with Birch's oft-voiced perception that it requires staggering resources and energy to defeat even a bad presidential nomination.

I could not attend that meeting, but was represented by a first-rate young staffer, Jim Flug, a Harvard Law School graduate. Flug had made a meticulous head count of senators likely to support Carswell, those likely to oppose him, and those on the fence who might respond to "go along with proper kinds of brotherly pressure" and oppose the nominee. It appeared that Carswell could indeed be defeated. We went to work. As the Judiciary Committee hearings began on January 27, I bore in on news reports that Carswell, then a U.S. attorney, had maneuvered to keep a Tallahassee municipal golf course segregated even after such discrimination had been ruled illegal. He denied involvement in any such thing. Three days after that, another Flug memo, titled "How to Beat Carswell," listed sixty-one senators who might oppose the man "if we can get the full civil-rights apparatus working, which it's beginning to do."

Birch Bayh was an outstanding leader in this battle and wanted to delay the committee vote on Carswell for two weeks to allow public opposition to grow. He managed it via a clever parliamentary maneuver that outfoxed Strom Thurmond.

Nevertheless, on February 16, the Judiciary Committee voted to recommend the confirmation of Carswell by a vote of thirteen to four. Bayh, Hart, Tydings, and I were the four "no" votes. We authored a joint dissent that hammered at Carswell's "lack of achievement and eminence in the law," and at his basic competence as a judge. Meanwhile, our strategy of letting opposition grow was working. It soon reached a flood tide among dozens of law school deans and professors, poverty lawyers by the hundreds, and several of the most influential law journals. Liberal Republicans began to back away. And then on March 16 came what many feel was the coup de grace against Carswell--delivered not by the opposition but by a blooper from his own floor leader, Senator Roman Hruska of Nebraska.

The thickset and pugnacious Hruska, flailing for any kind of toehold as the tide turned against his man, blurted to a radio interviewer that even if Carswell was mediocre, there were lots of mediocre people in the country, and they too were entitled to representation on the Supreme Court. "We can't have all Brandeises and Frankfurters and Cardozos and stuff like that there," Hruska stoutly affirmed. It proved the most enduring quotation of his career.

Still, Nixon hung on, trying to marshal a counteroffensive against the backlash. Several southern judges endorsed Carswell, as did the American Bar Association; but these had little impact. In March we achieved another valuable delay, persuading Mike Mansfield to hold up a full Senate debate. This had the happy effect of giving the Senate time to complete action on the Voting Rights extension bill, which included a provision I'd long championed, lowering the federal voting age to eighteen. The extension passed, and we turned our energies back to the Supreme Court nomination fight. The
New York Times
had predicted that Carswell would narrowly be confirmed, perhaps by a forty-nine to forty-seven vote. But the actual results showed another embarrassment for Nixon. His nominee was rejected by fifty-one to forty-five, as thirteen Republicans joined the majority. (Seventeen Democrats, mostly southern, voted to confirm.)