The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined The Supreme Court. (Clowns in Gowns: how Nixon's Rehnquist nomination screwed up the way we pick judges).

THE REHNQUIST CHOICE: The Untold Story of the Nixon Appointment That Redefined The Supreme Court

by John W. Dean Free Press, $26.00

LAST DECEMBER, THE SUPREME COURT handed down one of its most momentous rulings of all time, and one of its all-time worst. Bush v. Gore, as we know, cut short a recount of Florida's disputed ballots, thereby anointing George W. Bush the new chief executive. Constitutional experts, including conservative scholars, concede that the majority's purpose seems to have been to install in the White House someone whose politics matched their own and who would buttress their numbers on the Court. Instead of checks and balances, this was logrolling.

As a result, Bush's Supreme Court appointments will be made under a microscope. No justice has yet retired, but both sides are already plotting strategy. Bush and the Republicans want to appoint conservatives to the court, while Democrats hope to force them into going with a moderate like David Souter. The problem, however, is that for some time now both parties have boxed themselves into a corner by publicly pretending that a nominee's politics shouldn't matter.

Privately, of course, they know better. And so presidents devise elaborate ruses for slipping appointments through the nomination process--like playing the race card, for example. Bush, some speculate, may nominate White House Counsel Alberto R. Gonzales, banking that Democrats won't want to oppose an Hispanic. Meanwhile, senators, seeking to avoid explicitly ideological battles, prefer to seize on trivial personal foibles or other nonpolitical matters to shoot down candidates they dislike. Democrats are already scouring the records of the better-known right-wing judges, looking for indefensible behavior.

The nomination ritual as it is practiced today was set in motion by Richard Nixon's appointment of Chief Justice William Rehnquist--one of the Bush Five--which is the subject of John Dean's new book. In any context, Dean's book could claim to be the most detailed behind-the-scenes account ever written of a high court nomination. After Bush v. Gore, however, it serves even more significantly as a window into the contemporary nomination process and a study of the hardball judicial politics Rehnquist and his mentors have mastered.

Dean correctly judges Rehnquist's appointment to be "among the most significant [acts] of [Nixon's] presidency." The choice, Dean notes, "redefined the Supreme Court, making it a conservative bastion within our system of government." This is a slight overstatement; Rehnquist did not reshape the Court singlehandedly. He was, however, the first of three stalwart right-wingers who, along with two additional Republicans, managed to overthrow the judicial liberalism of the pre-Nixon Warren Court.

Moving the Court rightward was one of Nixon's proudest achievements. "Whatever happens in the [1972] elections, we will have changed the Court," he boasted to his aide H.R. Haldeman in September 1971. "I will have named four [Justices]." Nixon's three other picks turned out to be less conservative than he'd hoped: Harry Blackmun legalized abortion in Roe v. Wade; Lewis Powell saved affirmative action in Bakke; even Chief Justice Warren Burger, though undeniably conservative, authored the Court's 8-0 opinion in United States v. Nixon that forced Nixon to cough up the Watergate tapes that cinched his resignation. Rehnquist, the lone justice to abstain from that opinion, was also alone among Nixon's four appointees in carrying Nixonism into the 21st Century--which he did in more ways than one.

Send in the "Clown"

The Rehnquist Choice is impressive for many reasons: its lucid prose, its subtle humor, its relentlessly logical argumentation. Historians will admire Dean's original use of source material, particularly the tapes of Nixon's White House conversations, from the National Archives. Normally the claim that a book offers "revelations" reeks of publishers' hype. In recent Nixon books, information billed as "new" has actually come straight from such other published sources as The Haldeman Diaries or Stanley Kutler's Watergate-tape transcriptions, Abuse of Power. In the rare event that the information is new, it's frequently tangential to the story. Typically, the writer has come upon some tasty morsel--an anti-Semitic remark, or a barb directed at someone famous--and dropped it into his narrative to add shock value to an otherwise familiar account.

Dean, in contrast, uses his new material as a scholar should: not as garnish but as the meat of the book. What is new here is the totality of his account. The Rehnquist Choice is the first history of this seminal appointment, reconstructed (thanks largely to the tapes) in minute detail. Conversations appear in toto, reproduced not as artifacts to gawk over but as key episodes in a crucial story. Watergate books aside, Dean's work makes the most profitable and original use of the Nixon tapes to date.

The author is, of course, the same John Dean who served as a Justice Department official and later as White House counsel during the Nixon administration and who resigned in April 1973 for abetting the Watergate cover-up. As such, his book includes not only archival research but also recollections of his own involvement (usually supported by notes, official memoranda, and telephone logs). And although Dean remains harshly judgmental of the man who once tried to make him Watergate's fall guy, bitterness tinges the story only occasionally. The book does not read like a settling of scores.

Besides telling a riveting story, Dean makes an important contribution to Supreme Court scholarship. Though he could have said so more explicitly, his book limns the emergence in the early 1970s of a brand new dynamic in the politics of Court appointments. One has to recall that for most of the 20th century presidents faced little Senate opposition when picking justices. Whereas in the nation's first hundred years senators and presidents brawled often over nominees, the post-1900 expansion of the presidency relegated the Senate to a deferential role. From 1895 to 1968, only one high-court nominee--Herbert Hoover's candidate John J. Parker--failed to gain Senate approval.

That changed in 1968. When Lyndon Johnson tried to elevate his close friend Abe Fortas from Associate Justice to Chief Justice, Republicans and Southern Democrats filibustered to block the move. Contrary to popular conception, Fortas's discomfiture had little to do his questionable financial dealings; the fact that he received a $20,000 retainer from the convicted financier Louis Wolfson didn't surface until the following spring. Rather, in the summer of 1968 Senate conservatives, led by Strom Thurmond, beat back Fortas's promotion because they didn't like how he voted as a member of the Warren Court's liberal majority. By doing so, they ensured that Johnson's successor--who seemed likely to be Nixon--would pick the next chief justice.

Dean reveals that Nixon, not content with this single Court opening, created a second vacancy by helping to arrange for Fortas's ouster. The White House, Dean argues persuasively, was behind the 1969 disclosure of the Wolfson retainer to Lift magazine. According to Dean's summary of research conducted by the journalist Robert Shogan in 1971, Attorney General John Mitchell had Rehnquist, then an assistant attorney general, draft a memo casting Fortas's behavior in the most negative light possible. Although he had to resort to some intellectual gymnastics to do so, Rehnquist charged that Fortas had violated a little-known 1790 bribery law--an argument Mitchell deployed in strong-arming Fortas into resignation.

After these two hardball plays, Democrats struck back. Although they didn't contest Nixon's first nomination, that of Warren Burger as chief justice, they blocked his first two choices for the Fortas seat: Clement Haynsworth, ostensibly on the basis of his own ethical shortcomings and segregationist background, and G. Harrold Carswell, who was considered a glaring mediocrity with a segregationist record much worse than Haynsworth's. Irate, Nixon backed off his vow to appoint a Southerner and selected Minnesota's Harry Blackmun, a boyhood friend of Burger's, who sailed to confirmation.

Thus when Nixon suddenly found himself in September 1971 with two more openings--his third and fourth--he had a narrow needle's eye to thread. Dean's account of what follows serves to refute those who claim Nixon was a liberal on racial issues. The president, after all, told his aides repeatedly that he would appoint only judges who held conservative views on busing and crime. Yet, burned by the Haynsworth-Carswell debacle, Nixon also knew that Democrats would knock down any nominee who didn't pass muster with the American Bar Association, the lawyers' group that since 1954 had issued evaluations of each high court nominee's qualifications. So began the five-week roller coaster ride.

To lay out that wild trip in detail would ruin a terrific page-turner. Yet some points merit discussion. We learn, for instance, that Rehnquist was not Nixon's first choice for the job but his seventh or perhaps eighth, depending on how seriously you take Nixon's consideration of Senator Robert Byrd (whom Nixon liked because he seemed likely to win approval from fellow Senate Democrats yet also to vote with the Court's conservatives on racial issues). Rehnquist was chosen at the last minute, after others had crashed and burned. One of his most ardent promoters was John Dean.

As in his 1976 memoir Blind Ambition, Dean is self-critical here--not so noisily as in the anguished earlier volume, yet still candidly. For example, when it finally became clear that Nixon might name Rehnquist, Dean realized with regret that "I had been screwing around" in championing him as a candidate, "playing the long shot merely for the adventure--a piece of history." Belatedly, Dean feared that on the bench Rehnquist would be an "extreme, unyielding" ideologue. Still, he muzzled these concerns, figuring he was too young and inexperienced for such judgments.

More interesting than Dean's oscillations are Nixon's. The copious record of Nixon's conversations with Haldeman, Mitchell, and others reveals just how relentlessly political the president was in making his selection. The same qualities that historians have noted in Nixon's diplomacy are visible here: the ability to play one constituency against another; the keen desire to stun the press with a surprise announcement; the misguided elevation of petty goals, such as frustrating the Democrats.

Among a team of highly savvy operatives, Nixon emerges as the most media-conscious and strategy-minded of all. On the verge of announcing California Judge Mildred Lillie and Arkansas attorney Herschel Friday as his choices, he gives John Ehrlichman a P.R. lesson: "I would like to know how many years Friday has practiced. Then what I can say is that he has had more years of active practice than any present member of the Court." Lillie, he could say, had "more service as a trial court judge in unlimited jurisdiction than all the other judges presently on the Court combined ... See, now don't you think that sells?" Likewise, as Haldeman reviews the endgame for announcing the final choices of Rehnquist and Lewis Powell, Nixon interrupts with spontaneous yet precise and astute instructions on how to prime the press beforehand.

These conversations are studded with dozens of remarks--sometimes outrageous, sometimes just funny--that reveal Nixon's disturbing propensity to think about, and often to denigrate, people in terms of their sex, race, ethnicity, or religion. Women, blacks, Italians, Catholics, and Jews all come in for dismissive if not hostile treatment. Burger, the man Nixon expects to save the Court, is "a dumb Swede"; both Nixon and Barry Goldwater, Rehnquist's first political mentor, mangle their protege's name, calling him "Renchburg"(Nixon) and "Rensler" (Goldwater).

But Dean does not reprint Nixon's slurs as cheap shots. He embeds them in the context of important conversations to show how extensively the man dwelled on such concerns as race and religion. Nixon is heard voicing hope that Mildred Lillie will turn out to have "a little Italian blood"; howling, upon the mention of University of Chicago President Edward Levi, that he wasn't going to submit "a Jew's name"; and joking that William French Smith, yet another possible nominee, should convert to Catholicism. (After Mitchell promised to "get him baptized this afternoon," Nixon replied: "Well, baptized and castrated, no, they don't do that, I mean they circumcise--no, that's the Jews. Well anyway, however he is, get him changed.") Recently, some historians have asserted that the Oval Office tapes contain only random snippets and therefore cannot be used to piece together the nitty-gritty of presidential decision-making. To such claims, Dean delivers a knockout rejoinder.

Nixon's pettiness and bigotry are, of course, unattractive qualities. But one also has to admire his political skill. He was the first president to grasp that he could slip a conservative nominee past the liberal Senate only if he (or she) came with some sort of talisman of immunity that would make any nay vote look politically unwise. That magic charm might be the candidate's ethnicity or gender, as Nixon saw when he envisioned gaining feminist support for his choice of the conservative Lillie. Or it might be unassailable legal expertise, such as his consideration of Yale Law Professor Alexander Bickel, who, unlike the ill-fated Harold Carswell, could never be rebuffed as a mediocrity.

Ironically, then, in trying to checkmate the Democrats, Nixon ended up putting more weight, not less, on the ABA evaluations of his nominees that conservatives later grew to deplore (and that George W. Bush discontinued last spring). Nixon knew that conservatives had set a dangerous precedent in filibustering Abe Fortas's promotion in 1968; and after Haynsworth and Carswell, he feared the Democrats might retaliate in kind. "They'll always seize on what you've got as mediocrity and so forth and so on," he fumed to Mitchell. Getting ABA approval for his choices offered a way to counter such arguments. It was doubly ironic, then, when the ABA rejected Mildred Lillie as not qualified, depriving Nixon of the chance to name the first female Justice. Her scotched nomination cleared the way for Rehnquist, the dark horse, even though Nixon had recently adjudged his assistant attorney general to be a "clown." Rehnquist, alas, had gone to see the president wearing a pink shirt, psychedelic tie, Hush Puppies, and bushy mutton-chop sideburns.

No Holds Barred

Pulling back to examine the big picture of Supreme Court nomination battles over the last three decades, two clear and important trends emerge. First, the fetishization of legal expertise, to which Nixon contributed, has limited the Court. It has made Presidents leery of picking dynamic, larger-than-life figures with real-world backgrounds--people like John Marshall, Hugo Black, or Earl Warren--who in the past brought a sense of grandeur and purpose to the Court.

More important, though, has been the flip side of this fetishization: the new fiction that only "qualifications," and not ideology, count in the selection and confirmation of Justices. Historically, this is manifestly false; ever since the Senate rejected a nominee of George Washington's on political grounds in 1795, ideology has mattered. But since the Nixon years, the prevailing political culture has largely bought into this myth. Presidents have endeavored to muffle their nominees' opinions by stressing their race, gender, record of legal achievement, or other ostensibly nonpartisan qualities. And senators who might be disposed to reject a nominee on ideological grounds have to latch onto proxy issues--ethical lapses, sexual peccadilloes, the supposed lack of a distinguished

resume--to mount an opposition that won't be seen in the press as purely partisan.

It's no surprise that Nixon turned out to be, at least by 1971, an expert player at this game. He succeed for two reasons in particular: his acute sensitivity to the ways that race, sex, ethnicity, and other factors could be played to the media and in the political arena and his equally significant and not unrelated willingness to disregard the normal restraints on exercising power that obtain in a liberal democracy. Nixon ran roughshod over sacred rules. Although Watergate is barely mentioned in The Rehnquist Choice, it's hard to read the book without recalling the cunning, remorseless approach to politics that was Nixon's trademark. Indeed, Dean deftly tucks a few omens of Watergate into the narrative, as when John Ehrlichman orders two investigators to see what dirt may be found on one nominee. The investigators were Jack Caulfield and Anthony Ulasewicz, names familiar to anyone versed in Watergate criminology.

During Rehnquist's confirmation hearing, Nixon told him to "be as mean and rough as they said you were." Rehnquist obliged, as he felt he must, for Senate Democrats had discovered some damning incidents from his past: Back when he worked for Goldwater, he had helped intimidate blacks and Hispanics from voting; before that, while clerking for the Supreme Court, he had written a memorandum arguing for the constitutionality of Plessy v. Ferguson, which had legalized segregation. Rehnquist denied both charges under oath in 1971 and again in 1986 when he was confirmed as chief justice. But Dean, reconstructing the evidence, demonstrates that Rehnquist lied. (Anyone who doubts Rehnquist's mendacity should read Dean's powerful afterword.) Rehnquist, like Nixon, would do anything to win.

More even than his conservatism on busing, crime, and social issues, the win-at-all-costs ethic was Nixon's lasting legacy to American politics. Last December, the Supreme Court, led by William Rehnquist, once more made this abundantly clear.

DAVID GREENBERG teaches history at Columbia University and writes for Slate.com. He is writing a history of Nixon's image in American culture.