The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court.

John W. Dean The Free Press www.simonsay.com 352 pp., $26

Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit recently observed that given John Marshall's long tenure on the Supreme Court and colossal impact on the law, it is easy to forget that he was not installed as chief justice by the Constitution itself.

In fact, as Justice Oliver Wendell Holmes once quipped, "part of Marshall's greatness consisted simply in his `being there."' Had the chief justice's seat gone vacant just a few weeks later, when Thomas Jefferson, not John Adams, was president, Marshall might have lived out his days practicing law in Virginia instead of stamping his nationalism indelibly on American constitutional law.

In a similar vein, the 30th anniversary of William Rehnquist's appointment to the Supreme Court reminds us how unlikely his nomination was. The Rehnquist Choice makes readers realize how easy it would have been for things to turn out differently--for better or worse, for Rehnquist, the Court, and the law--if he had not been appointed.

The book is timely and engaging. It is also, at times, quite irritating. Former Nixon aide and Watergate conspirator John Dean has an interesting and important story to tell. Recently released White House tapes make possible a tightly focused, rigorous microhistory of the weeks between Hugo Black's resignation from, and William Rehnquist's nomination to, the Supreme Court in 1971.

The good news is that the book includes this story. The bad news is that Dean obscures the story with his hovering and intrusive presence and clutters it with tedious expressions of self-important regret. He is so intent on both getting credit and accepting blame for the Rehnquist nomination that he ends up simply being in the way.

As the story of the nomination unfolds, Nixon is at his crassest and most clever. His many prejudices, as well as his considerable political skills, are on full display. One moment he is looking for a Catholic for the job. (He observes that "Protestants expect to have things. The Catholics don't.") The next, a woman. He and his circle consider brilliant Yale law professor Alexander Bickel one day. ("He's smart and all that sort of thing," Nixon notes.) Another day, they cynically flirt with daring the Senate to reject Democratic Sen. Robert Byrd as a nominee.

The case for Richard Poff (Dean's personal favorite) fizzles when he withdraws to avoid media scrutiny. Arkansas lawyer Herschel Friday's chances evaporate when it becomes clear that he has given little thought to constitutional law. Mildred Lillie's reversal rate by the California Supreme Court proves too high for the American Bar Association. And William French Smith, whom those in Nixon's circle frequently mention and praise, is an apparent shoo-in until he gets lost in the last-minute buzz for Rehnquist.

After many twists and turns, and after Dean "floats" Rehnquist's name "in a seemingly innocuous conversation" with the special counsel to the president, the nod goes to the man who has been working as "the personnel director for future justices." Rehnquist's excellent academic record and conservative philosophy finally receive Nixon's full attention as the president and his advisers wait for Sen. Howard Baker to accept or decline the nomination.

In July 1971, Nixon had asked about a Justice Department lawyer, "Who the hell is that clown?" He was referring to Rehnquist, who wore a pink shirt and "psychedelic" necktie. That October, Nixon introduced "that clown," his nominee, to the country as one of "the very best lawyers in the nation."

The Rehnquist Choice tells a great story, but it is frustratingly flawed. Dean's ostentatious hand-wringing and self-indulgent mea culpas are distracting. Time and again, he seems to seek absolution for having (in his mind) inflicted Rehnquist on the Constitution. Though he had once "delighted in being an agent for history," he tells us that he is now haunted by "the thoughtlessness of my somewhat irresponsible adventure as a young White House staffman playing for a piece of history."

Such delusions of grandeur get old fast. They also appear unfounded, as Dean himself makes it clear that several Nixon insiders, and even Sen. Barry Goldwater, considered William Rehnquist a plausible and attractive candidate.

Indeed, although Dean complains about "the extraordinary politicization of the appointment process under Nixon," what is probably most "extraordinary" about Dean's story is that someone with Rehnquist's capabilities and credentials was selected at all. According to Dean, even Rehnquist joked that he could never be nominated because he was "not from the South, ... not a woman, and ... not mediocre."

Dean's story of Rehnquist's nomination is also cluttered with more than a few outlandish allegations, unfair characterizations, and uninformed claims. For example, according to Dean, "It is not an overstatement to say that Rehnquist," during his stint as a government lawyer, "misused the resources and powers of the Department of Justice ... to literally unpack the Court by removing life-tenured justices they found philosophically or politically unacceptable." Upon examination, though, this charge turns out to be little more than a melodramatic way of saying that Rehnquist wrote various research memoranda with which Dean now disagrees.

Dean also claims to have uncovered new evidence of Rehnquist's alleged constitutional radicalism--evidence that, in Dean's mind, serves to underscore the historical significance of his own little "game." For example, Dean reveals that while working in the Justice Department, Rehnquist apparently committed to paper his view that the Warren Court's criminal-procedure revolution was unwise policy and unsound constitutional law. According to Dean, this memorandum reveals that Rehnquist was working behind the scenes to lend an "air of legitimacy" to a right-wing plot to "rewrite the Constitution."

Surely Dean is aware, though, that many reasonable people have questioned the Warren Court's constitutionalization of criminal procedure. What is remarkable is not so much that Rehnquist wrote this memorandum or entertained these views but that Dean finds it so remarkable, and so ominous, that any decent person could.

Despite these flaws--many of which can be avoided by skipping the afterword--The Rehnquist Choice remains an entertaining and provocative book from which thoughtful readers will draw different conclusions.

Richard W. Garnett is a law professor at Notre Dame Law School. He clerked for Rehnquist during the Court's 1996-1997 term.