I had been a United States Magistrate Judge, for all of five months or so, when my old boss Judge Don Ross took senior status and then Chief District Judge C. Arlen Beam was nominated to take Don’s spot. That left an opening on the district court bench, and Judge Ross urged me to “apply.” Unlike in more recent times, “apply” did not mean filling out formal paperwork for the home state US Senators. It meant letting the right people know of your interest.
I told Judge Ross that I was reluctant to apply because I had just become a magistrate judge, and he replied that these opportunities did not come along very often, so I should not be stupid. Judge Ross could be blunt. So, I “applied.” Truth to tell, I “applied” to Judge Ross and he passed along my interest to the powers that be.
I found myself at Main Justice in the summer of 1987 as preparations for the Bork nomination and hearing were in full swing. I think I wore a vested wool suit with vague pin strips and highly polished shoes. Of course, that meant I was covered from head to toe in perspiration as I was ushered into a room for my first appointment. Like Bush 41, President Reagan had the legal policy lawyers at DOJ do the interviews for non-entities like district judges.
I was supposed to have five interviews of about an hour each and then a final interview with the head man. Honestly, the interviews were fun. The DOJ lawyers were extraordinarily smart and asked tricky question. I truly enjoyed the give and take. After the fifth interview, I was told that a sixth interview was added for a guy who normally dealt with appellate judges. That interview went fine too, although of all the interrogators the last one was clearly the smartest and toughest. By the way, stacked in his office were all the papers that Robert Bork had ever written.
By mid afternoon, it was time for the last interview with the big cheese. This one was brief and to the point. He asked me why the President should nominate me. Throwing caution to the wind, I told him the six fellows that had just interviewed me would tell him, if he hadn’t already asked, that I was the best candidate for the job.
At the point, he cracked a small smile and asked what I had done to piss off Congresswoman Virginia Smith. I told him that I had represented the state in an impeachment proceeding against Paul Douglas, the Republican Attorney General, but that the charges were bipartisan. Nonetheless, Mrs. Smith and many of her supporters were friendly with Mr. Douglas, and they questioned my Republican bona fides in taking on the investigation and ensuing impeachment.
Virginia Smith was small woman with enormous national political influence despite the fact that she represented the third district of Nebraska. The boss man at DOJ was blunt. He said: “We might be interested in your nomination, but we aren’t taking on Mrs. Smith for you. If you can talk her out of opposing you, call me back. Otherwise your done.”
When I got back to Omaha where I was then stationed, I called the one person that I knew could change Mrs. Smith’s active opposition. As it happened, I knew Bud well, he was a lawyer in Lexington. While we were not friends, we had always been cordial. He and his wife were close confidantes of Mrs. Smith and long time friends of the Attorney General. I asked Bud if he might be willing to intercede on my behalf, and he said no. He was not unpleasant, but he was absolutely firm in the view that I had made a choice in proceeding as counsel for the state against a fine Republican Attorney General and I would now have to live with consequences. In short, I was toast.
Mrs. Smith got the White House to nominate a nice fellow from her district, but the ABA would not give him a qualified rating. Then, she convinced the White House to nominate another lawyer from her district, state district judge Bill Cambridge. I had known Bill in the practice and respected him particularly his humility and work ethic. He was easily confirmed, and Bill and I became fast friends. I remained a United States Magistrate for five more years.