Childress worked for Sen. Edward Kennedy, who as Labor Committee chairman was to guide Gould through the confirmation process. Gould found Childress, like most of the people working for Kennedy, to be "very cocky and a pain in the ass." Just like him to act oblivious to the time difference between D.C. and California.
"Are you sitting down?" Childress began.
So Gould's alarm had not been misplaced. The sweet summer that might have been had soured into an unexpected education in attack politics. "What is it?" he asked.
"I have to ask you," said Childress. "Do you gamble?"
In August 1993 President Clinton had nominated William Benjamin Gould IV, the great-grandson of a slave, to become chairman of the National Labor Relations Board, the body that enforces the nation's labor law.
Gould's nomination was quickly targeted by conservative Republican senators, business lobbies, and right-wing journalists, a coalition that had effectively blocked other controversial Clinton nominees. They had, for instance, knocked off Lani Guinier and obstructed the president's ability to implement policy changes at agencies such as the Equal Employment Opportunities Commission by prolonging the hold of lame-duck Bush and Reagan appointees.
For 12 years the NLRB, which is supposed to enforce the laws governing what unions and management may and may not do, had been, in Gould's view, paralyzed by political design. The Republicans had so slowed down grievance procedures that by the time wronged workers received legal relief, or fired union organizers were reinstated, their causes had been lost.
In his recent book, "Agenda for Reform," Gould had argued that "the law is not working" and laid out what needed to be done to fix it. He wanted to speed up certification and grievance procedures. He supported legislation banning the permanent replacement of striking workers, provided the union had tried to resolve the dispute through third-party intervention.
When Clinton tapped him, Gould felt that his moment had arrived, that his entire professional life had been preparation to chair the NLRB. As a labor lawyer, management lawyer, scholar, and arbitrator of more than 200 labor disputes, Gould believed his strengths had been his simple adherence to principle, the law, and straight dealing.
The law had always been Gould's chosen machinery of change. Although his father had lost jobs as an engineer because he was black, Gould had not participated in the civil rights movement. "Oh, God," he said, when asked about that time in his life, "I never really had an activist '60s. I kind of missed out. I already had my profession, little kids, a lot of stability built-in. I feel I'm more of a '50s product, so staid, buttoned-down, and conservative."
In the early 1960s, however, he'd represented some black workers in an employment discrimination suit against Detroit Edison and won a $5.35 million judgment, the biggest of its kind on record at the time. He made no secret of his race, but his toffee skin resulted in some white people knowing him for a long time before they realized he was of African descent.
Though he did not subscribe to the view held by some experts that the NLRB had played a decisive role in the decline of unionism in America, Gould's fundamental belief was that the National Labor Relations Act correctly identified collective bargaining as necessary and desirable. Whatever other reasons existed for the dizzying decline in union membership and power, "workers, union officials, and business people [ought to] know that they will be treated with respect, civility, and fairness."
The Labor Policy Association, an organization of human resources vice presidents that does research for major corporations, said his views were "nowhere close . . . to the mainstream." The AFL/CIO called him "a great choice."
The Republican Party decided that Gould would be too large a risk. "You write a book taking a high-profile position on changing labor law, there's going to be a response," said Jeffrey McGuiness, president of the Labor Policy Association. "There's tremendous real-world consequences to these ideas. Millions of dollars rest on whether the board goes this way or that."
Or, as Senate Minority Leader Robert Dole of Kansas put it, "This is where the important policy battles are fought."
The same network that defined Lani Guinier as a "quota queen" and spread rumors about Janet Reno's "drinking problem" now went after Gould.
The nominee, clad only in a bath towel, now listened to Mark Childress tell him that "the Republican side" had passed on a disturbing report.
Childress said that word was circulating that Gould had run up disastrous gambling debts and was being bribed to throw arbitration cases in order to pay off what he owed.
Gould was alarmed. He had always had a sense that the world was full of desperate and jealous people who did not wish him well. Gould did not lack for ego, and like many proud and accomplished men he was also demanding, at times prickly and thin-skinned.
Now, after a lifetime of probity and moderation--he once described baseball, the Democratic Party, the Episcopal church, the Modern Jazz Quartet, and the NAACP as "life's eternal verities"--Gould was being smeared, because someone regarded his honest views as too radical.
Gould had never gambled, didn't even play in the faculty poker game. But he could see clearly enough the basis for the smear: He was a very public Boston Red Sox fan and had recently gotten the kick of a lifetime arbitrating some baseball salary disputes. While he had never bet on games, if you didn't know him--as whoever was spreading this rumor clearly did not--you wouldn't know that.
What was most disturbing, really, was that even though the accusation was a complete fabrication, it could still wound him politically. Washington is a city where perception can become tantamount to reality.
Gould's instinct was to fight back. So he asked Childress who was saying these things about him.
But Childress wouldn't tell him. And although Gould had already received a standard FBI clearance, Childress explained that an agent would be coming to California to reinterview him.
The Republicans in the Senate have made no secret of their strategy and tactics. Under the leadership of Sen. Dole, they target those presidential appointees whom they find most ideologically indigestible, threaten to filibuster, and force the White House to expend energy and political capital getting confirmations.
The Republicans' aims are twofold. First, they hope to make the president back off candidates he knows they will target. Second, they tie up the regulatory agencies, especially in the areas of civil rights and labor law enforcement.
"It's a strategy of gridlock," Gould said. "Dole has attempted to dictate to the president the composition of the regulatory agencies. They don't have the votes to reject somebody like myself, but they do have the votes to keep us in limbo."
The network that went to work on Gould was the same one that had defined Lani Guinier as the "quota queen" and derailed her nomination. It begins with Republican Senate staffers deeply opposed to a nominee's ideas. Conservative columnists with ties to their ideological brethren in the Senate run smear stories. Sometimes right-wing radio broadcasters pick up the seed of the story and plant it deep in the grass roots. And the stories, originating in the capital, begin to slither back into town as outraged public opinion.
Similar tactics were used against Attorney General Janet Reno during her confirmation, when an aide to a Republican senator and a former lobbyist for the National Rifle Association helped spread rumors that Reno had a drinking problem, something she flatly denied.
And they were also tried against Dr. Joycelyn Elders, Clinton's controversial surgeon general. "We had problems raised about Dr. Elders," said Republican Sen. Nancy Kassebaum of Kansas, who enjoys a reputation for decency among Democrats. "Kennedy and I tried to handle it before it gained a head of steam."
"There's a bunch of very conservative Senate staffers working conspiracies against liberals," says an administration insider. "We had this on lots of nominees." He mentioned Reed Hunt, the chairman of the Federal Communications Commission, as a target of "unfounded attacks." "Like it or not, it's what our system is all about. This city has its way of doing business."
Washington, D.C./Palo Alto; Summer 1993: The signs had been there from the beginning that the White House was going to botch Gould's nomination. It had been so offhand when he'd been invited to Washington in May. A woman named Cynthia Metzler in the White House personnel office chatted with him and then said that everything seemed fine and they'd like him to do the job.
Then she whisked him to the granite-slab Labor Department building named for FDR's Labor Secretary, Frances Perkins. Perkins was one of Gould's heroes: In his cluttered faculty office at Stanford, Gould had mementos of the 1986 Red Sox, Nelson Mandela, Larry Bird, and Frances Perkins. The first female cabinet member, Perkins once said: "I came to Washington to work for God, FDR, and the millions of forgotten, plain common workingmen."
Many years earlier, Gould had worked at the NLRB as a lowly staff attorney. At 57, he was returning to take over.
Gould had a brief meeting with Labor Secretary Robert Reich, which seemed to go well. The clear assumption was that the job was his. Gould went home to Palo Alto bursting with plans and ideas. And everybody in Washington promptly forgot all about him.
At that moment the North American Free Trade Agreement had the full attention of all the labor politics players, from Gould's friends in the AFL to his opponents in the U.S. Chamber of Commerce and the National Association of Manufacturers. "They were totally preoccupied with NAFTA," Gould said. "I was not on their radar screen."
The NLRB was limping along with only three of its five seats filled, two by Republicans. James M. Stephens, appointed by that well-known friend of labor Ronald Reagan, was staying on as chairman pending Gould's confirmation by the Labor Committee and then the full Senate. The Clinton administration had not yet come up with nominations for the vacant seats.
Clinton's neglect opened the barn door, and the Senate Republicans were only too glad to let the horse out. "They were very late getting [Gould's] papers up here," said Sen. Nancy Kassebaum, the ranking minority member on the Labor Committee. "We can't do anything until the papers get here."
Gould had dutifully submitted all the required professional, personal, and financial documentation in June. When White House Counsel Vincent Foster committed suicide on July 20, writing in the note he left behind that, "Here, ruining people is considered sport," Gould's papers were being vetted in his office.
"In late July and early August," Gould said, "there was tremendous confusion about where those papers were. Cynthia Metzler told me there was difficulty finding them because everybody was focused on Foster's suicide."
Usually a ceaseless, driven worker, Gould spent much of the summer too distracted to concentrate on the books he was writing about baseball and about his great-grandfather. He wandered between his office, where he called Washington in search of news, and his home, where his nervousness distracted his British wife, Hilda, a science editor.
In May the White House had told him he would be confirmed by the end of July, so he wasn't slated to teach in September. And he had purchased a condo in Washington that was costing plenty.
His enemies, both visible and hidden, had all the time they needed. "We were surprised they'd hang out an extremely controversial candidate for so long," said Jeffrey McGuiness of the Labor Policy Association. "We spent a leisurely summer reading all his articles and books and preparing ourselves." In the end they distributed a thick memorandum citing chapter and verse Gould's sinful views.
The far-right National Right to Work Committee began to crank out direct mailings to its 1.8 million members, describing Gould's scholarly book, "Agenda for Reform," as "a battle cry--institutional unionism's 'Mein Kampf.'" They also sent out Actiongrams warning, "Clinton has gone beyond pandering to Big Labor, he's now groveling for union boss approval." The mailings included pre-written postcards to be sent to Congress.
Finally, on Aug. 5, with the capital emptying and the heat oppressive, Gould's formal nomination was sent up to the Hill.
Not long after, Gould got the first hint of what was to come. Kennedy's man, Childress, called to tell him that certain Republicans were saying Gould was working closely with the Communist Party during his numerous trips to South Africa, and that he was slipping unnoticed into Cuba, too.
Gould had never been to Cuba. As for his trips to South Africa, Gould had a long-standing scholarly interest in labor movements as agents of change. (He had also written about Solidarity in Poland.) On one trip to South Africa he had met Joe Slovo, the head of its Communist Party. So what?
Childress seemed to laugh the whole thing off, too. This was the message that Gould consistently received from allies in the Senate and elsewhere: Don't take this stuff too seriously; it's just the way business is done here.
It only got worse. A month later, the accusation of gambling and taking bribes was floated three days prior to his Oct. 1 hearing before the Senate Labor Committee, the first hurdle in the confirmation process.
Gould wanted it known how the Republicans and their allies in business were playing fast and reckless not just with the truth and his good name but with the democratic process itself. He was thwarted, though, by Childress, who refused to tell Gould which Republicans had spawned the rumors that he was a communist or a gambler on the take.
"He wouldn't even tell me why he wouldn't tell me," Gould said. "Some sort of confidentiality, professional courtesy."
What Childress did say was: "Don't tell anybody, don't mention it. We don't want this to get out."
Flying to Washington, Gould reflected on how no disgrace had ever soiled the name of William Benjamin Gould through four generations: how his great-grandfather had escaped slavery to fight with the Union Navy; how his late father, whom he regarded as wise and saintly, had lost jobs because he was black. Gould felt strong enough to deal with those who opposed him because of his views. But these invisible enemies, telling lies about him, scared him and made him fighting mad.
Bill Gould decided that whether or not he defeated the smear campaign, he wanted the whole story of his confirmation told. People deserved to know what a nominee has to endure to serve his country.
Room 430, Dirksen Senate Office Building; Oct. 1, 1993: Kennedy called the hearing to order moments after 10 a.m. Gould had not slept all night, prepping for his confirmation. Though at some level he was exhausted, he was also hyperalert as he took his place. He was confident that nobody knew the material better than he.
As the stirring subsided, Gould's attention settled on one after another of the bright young aides situated around their senators like constellations. He felt certain that his hidden enemies were here in this room. No matter, the committee would learn who he was.
By the time the hearing ended Gould would learn something, too. Among all his enemies Orrin Hatch of Utah was "the most dangerous."
In his opening remarks, Gould described how his grandfather and his five great-uncles had, like their father, all served in the U.S. military; how his family had founded the Episcopal Church of the Good Shepherd in Dedham, Mass. "These men were the backbone of our country," he said with feeling. "Their commitment to our nation, their views about religion and life shaped my philosophy." Let his enemies do their best to make a radical out of that!
Kennedy then spoke glowingly of Gould's experience and fairness, noting that Gould had in fact decided a slight majority of his 200 arbitration cases in favor of management.
Soon, as Gould listened, Kennedy and Orrin Hatch began to banter. The overweight, florid liberal and the sleek, chisel-featured Utah conservative were displaying their chumminess for the benefit of the crowded committee room. "By the way, I saw your sister this morning, Sen. Kennedy," said Hatch, "and Eunice told me to blister both of us because we didn't ask anything about persons with disabilities when Mrs. Clinton was up here the other day."
When Hatch's questions came they were smart, knowledgeable, lawyerly. In subtle ways they cut into knotty and contentious issues, forcing Gould onto the record in ways that might later prove useful to his opponents. Gould felt that Hatch was trying to impress him, to show the Stanford professor he wasn't the only brain in the room.
Hatch clearly understood that the successful application of Gould's power on the NLRB would lie in the subtleties Gould had mastered. Was access granted to a union on company property adequate? Were a union's actions reasonable? Was a management tactic intimidating? On such fine points would enormous money and power depend.
Hatch demanded Gould assure him he would not try to remake the law but rather enforce it as written. Of course, Gould answered that he would stick to the letter of the law. But both men understood that the NLRB was a policy-making body that shifted with each change of administration.
One of union labor's most effective enemies during the Reagan-Bush years, Hatch viewed the NLRB as his fiefdom. Indeed, James Stephens, the man Gould was nominated to succeed as chairman, was a former Hatch aide.
"I don't want you to run wild over there," Hatch barked.
But when Hatch wasn't bullying, or showing off how much he knew, he struck Gould as unctuous and ingratiating. "I have no doubt you are a wonderful law school professor and a wonderful human being," he told Gould. "And I think we are going to be friends regardless of what happens here. I'm certainly going to be your friend."
The hearing ended before lunch, and Kennedy was the first senator to shake Gould's hand. Inclining his leonine head toward Hatch, Kennedy told Gould: "He never laid a glove on you."
Hatch's hand was also outstretched. "Welcome to the board," he said, although Gould's confirmation was by no means certain. He then totally bemused the nominee by asking for an autograph. Gould allowed himself the thought that the worst was over.
It was not.
Hatch aide Mark Disler had sent conservative columnists a thick packet of negative material. Hatch claimed to be completely unaware.
Orlando, Fla./Palo Alto/Washington; October-November 1993: On Oct. 20, the Labor Committee voted along party lines to confirm Gould 10 votes to 5, with two Republicans who had indicated support for Gould abstaining. But as both sides prepared for Gould's confirmation vote before the full Senate, the disinformation campaign picked up steam.
On Oct. 31, Charley Reese, a columnist for the Orlando Sentinel, wrote about Mark R. Disler, the Republican staff director for the Senate Judiciary Committee. An aide to Orrin Hatch, Disler had sent conservative columnists (including Reese) a thick packet of negative material about a Florida judge named Rosemary Barkett whom President Clinton had nominated to the 11th Circuit Court of Appeals. Disler urged the journalists to use the material without saying where they'd gotten it.
"I don't grant anonymity to cheap-shot artists," Reese wrote, describing the material as "poisonous," "lies," and "a disinformation campaign."
Gould was riveted when he read of the Disler/Barkett/Reese incident. But what knocked his socks off was that in the same week columnist Paul Craig Roberts had written a piece in the ultraconservative Washington Times, linking Gould's nomination to that of a judge he'd never heard of before, a judge named Rosemary Barkett. It was impossible to believe that this was merely a coincidence--what Roberts wrote about Judge Barkett seemed to have come directly from Mark Disler's packet.
"[Judge Barkett] believes that blacks who receive the death penalty do so because of their race and not their crimes," Roberts wrote. "In Gould's view, employers are aversive union busters and simply cannot bargain fairly."
For the first time, Gould knew the name of one of his invisible enemies: Mark Disler. As Charley Reese had written, "If you see some other pundit pontificating about Justice Barkett . . . you'll know the source--Little Mr. Leaker on the minority staff of the Judiciary Committee."
Although Hatch told the New York Times that he believed the material Disler had sent out about Judge Barkett was true, he said he had been completely unaware his senior aide was doing such a thing. Hatch also said he had disciplined Disler, but would not say how.
Disler describes himself as a lifelong conservative with an ambition to shape public policy, especially in the area of civil rights. While Disler spearheaded opposition to Barkett, another Hatch aide, Sharon Prost, was working against Gould from an office a few feet away. Neither would talk on the record. After a number of inquiries, Hatch's press secretary Paul Smith said, "Mark Disler had no involvement in the Gould matter, and he made no representation to anyone about Mr. Gould. Any allegation to the contrary is a complete and malicious fabrication."
Meanwhile, Paul Craig Roberts' linkage of a California labor lawyer and a Florida judge who were strangers to each other was finding its way into the mainstream press. The Los Angeles Times reprinted it, and within a few days the idea appeared in the Evening Standard, a British tabloid.
When asked, Roberts said he could not remember the source of his inspiration to link Barkett and Gould, did not have the time to check back, and was not willing to meet to discuss it. "I'm not personally concerned with their fate," he said. "Did they both make it?"
Paul Craig Roberts had been an assistant secretary of the Treasury under Ronald Reagan. Before that, however, he'd been an economic aide to Sen. Orrin Hatch.
It was becoming clearer to Gould exactly who was behind the effort to sabotage his nomination. James Stephens, the ex-Hatch aide chairing the NLRB pending Gould's confirmation, called Gould frequently, and Gould was becoming suspicious about what he was up to also.
"All these people have had their way, and they want to continue," Gould said. "Also, the idea of having somebody who is black and who knows his subject is very disturbing. The thing with Judge Barkett was an obvious attempt to pull me as a black nominee into the area of racially inflammatory controversy. I imagine their attack on her was packed with lies also."
Of course, lies were a subject Gould was learning all about. An FBI agent interviewed him for 30 minutes soon after his return to Palo Alto, questioning him aggressively about his alleged bribe taking.
Afterward what stuck in his mind was her asking: "Why would somebody say something like this about you?" He felt the implication was there must be something to it.
"I must have enemies," he said drily.
The Republicans on the Labor Committee, led by ranking minority member Nancy Kassebaum, now took Gould political hostage. "Several Republican members of the committee indicated they would withhold their support for Professor Gould's nomination," Kassebaum wrote in a private letter to President Clinton in late October, "at least until you send Congress a complete package of nominees for the remaining open positions on the board."
If the 42 Senate Republicans were willing to filibuster until the White House gave them what they wanted, the 58 Democratic votes were two fewer than were needed to invoke cloture. The Republicans had the upper hand because they were unified and organized--and not for the first time.
"It's the same old strategy of gridlock," said Sen. Paul Wellstone, a Labor Committee Democrat who had befriended Gould. "It happens all the time. The last two years there've been 60 or 70 filibusters."
The NLRB retains two of its five seats for members of the party not in the White House. In exchange for confirming Gould, the Senate Republicans wanted to force Clinton to name a Republican of their choice to one of the board's vacant seats. NLRB decisions are sometimes appealed to the federal appeals court, and the Republicans wanted to choose a minority party board member who would build an appeals record. If Clinton did not go along, Gould could dangle forever. The Kassebaum letter was a line in the sand.
Two weeks went by before the president kicked the sand in her face. "It is critical at this juncture that the board remains functioning," Clinton wrote back, adding that he would be able to turn his attention to the remaining positions only after Gould was confirmed.
At first Gould was thrilled. The president stood by me, he thought. But he watched with dismay as the White House failed to back up the strong words by rounding up the votes it needed in the Senate. Meanwhile, the Republicans were closing ranks.
"Sen. Kassebaum plays her role," said a Republican aide. "She theoretically is representing all Republicans. We consulted with other members, including Sen. Dole in his leadership role."
Kassebaum insists that it was not her intention to defeat Gould, only to hold him up until the White House was willing to deal. As Jeffrey McGuiness at the Labor Policy Association put it, "All during the Reagan-Bush years labor was blocking our candidates, and we figured, well, turnabout is fair play."
Gould didn't buy that, but he was almost as angry at the ineptitude and lack of courage in the White House as he was at the Republican opposition. "The White House didn't believe they had the votes," he said. "Of course, they never tried to get the votes."
But for the White House the issue was bigger than Bill Gould, said an administration insider. The Democratic Party, out of power for 12 years, was trying to decide how it should pick the required Republicans for the statutory commissions. "The issue was--don't give this away! It was the prerogative of office . . . the president owns the nominations."
The Republicans were putting forward two choices acceptable to them: Chuck Cohen was a Washington management attorney who very much wanted the job; Mary Harrington, a lawyer with Eastman Kodak Co., was strongly supported by Sen. Dole.
On Nov. 26, Congress adjourned until 1994.
Hilton Head, S.C.; New Year's: During Renaissance Weekend, the annual retreat where last year select invitees rubbed elbows with the First Couple, Jack Sheinkman, president of the Amalgamated Clothing and Textile Workers Union and a supporter of Gould's, appealed to the president to try harder to confirm Gould.
Sheinkman later told Gould that he suggested to Clinton that Gould's nomination could mend fences after much of labor had been alienated by the president's backing NAFTA. "We need somebody with an impartial view," Sheinkman said. "Bill Gould is not an in-the-trenches labor guy. But he is a person of integrity who thinks the board should fulfill the requirements of the act."
The president had been attentive; he had even taken notes.
"Here's a place you can have an effect right away," Sheinkman told him. For years the unions had been trying unsuccessfully to get Congress to reform the labor laws. A Gould-run Democratic board was a way around a bruising and probably unwinnable fight in Congress.
Clinton assigned his staff secretary, John Podesta, who was also the White House point man on the Whitewater mess, to ferry Gould safely through the Senate. It promised a high level of attention. At last.
Palo Alto; March 2, 1994: Depending on whose version you accept, either continued dithering by the White House, or infighting among employer groups, or vetoes by the AFL of Republican possibilities, or more Republican obstructionism held up Gould's Senate confirmation vote until the first Wednesday in March.
Gould had essentially lived on the phone for three months. He dialed Washington so often, trying to squeeze information out of a stony capital, that his monthly bill had topped $1,200.
With a deal concerning the open seats on the NLRB in the works at last, there had been a dying twitch from the disinformation campaign. In January Gould had heard on the grapevine that some Republicans were saying he'd threatened to withdraw unless he was confirmed by the end of the month.
Here it was March, and the chairman-designate was pinballing from place to place in his old red Honda. "You might say he's frantic," said his secretary at Stanford, Kathleen Schneider. "He's got me calling all these people in the White House to see if I can get more precise information about what time the Senate will be voting."
Kennedy, who would be floor-managing, had assured Gould the votes were there. As the debate in the Senate began, Gould sat watching C-SPAN in his study with his wife Hilda. His expression was part awe and part anxiety as senators rose one after another to praise or fault him.
The praise was fulsome. Sen. Howard Metzenbaum, D-Ohio, for instance, said, "Professor Gould stands out as the most qualified nominee in the long history of the NLRB."
Hilda Gould turned to her husband, the father of their three grown sons. "You're not enjoying this, Bill, are you?" she asked.
Kassebaum's pointed remarks were not nearly so enjoyable. "The NLRB is not and should not become a forum for radical labor law reform," she said. "I do not believe any of us want to return to a period of . . . disruption and uncertainty."
Gould was uncharacteristically quiet. But the law professor in him surfaced when Kassebaum said, "An arbitrator takes a very narrow issue and usually, in many ways, splits it in half."
"Somebody should call her on that," Gould said, and dialed Washington. "Listen, an arbitrator generally does not split the difference," he told a liaison man. "In most cases he decides for one side or the other."
Five minutes later, Gould watched as Kennedy was slipped a note. Gaining the floor, Kennedy began a long-winded correction that never did make Gould's point. The transcontinental message had come out garbled at the other end, just as it does in the children's game of pass-it-on.
"He screwed that up," Gould sighed. (Luckily for senators, they can unscrew-up; a proper explanation of an arbitrator's role has been inserted in the Congressional Record, just as if Kennedy had said it.)
About 1 p.m. the voting began, continuing for 50 excruciating minutes as classical music played on C-SPAN. Fina