The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court.
John Dean, as all of us who lived through Watergate will remember, was counsel to President Richard Nixon at the time of the break-in and for the first ten months of the conspiracy that eventually led to Nixon's resignation. No one who saw him testify about the conversation in which he told Richard Nixon that there was a "cancer on the presidency" can ever forget the drama or the clarity with which Dean recalled the events. There were doubters at the time, but when the tape system was revealed and the crucial meetings were heard by the prosecutors and eventually the whole world, the story that Dean had given was fully confirmed.
The Rehnquist Choice relies to some degree on Dean's recollection of what happened in the five weeks in the fall of 1971, between the time that the two vacancies were created by the retirements of Justices Hugo Black and John Harlan, and the announcement that Lewis Powell and William Rehnquist were to be nominated as Associate Justices of the Supreme Court. His endnotes clearly point out when he has reconstructed conversations that took place almost thirty years ago, but his personal recollections are important to set the background and to provide the thread that holds the book together. Even then, they are often aided by documents or contemporaneous notes, such as the Haldeman diaries, kept by others.
Dean's recollections alone would not be noteworthy. What makes the book so riveting is that the heart of the story is from the White House tapes themselves, with the words of President Nixon, his Attorney General John Mitchell (who was unaware of the taping system), and his Chief of Staff H.R. Haldeman (who was) almost leaping off the page. Although there are a few places where the conversations cannot be completely made out, there were usually only two people present for the key meetings, and the system worked exceptionally well for telephone calls, making for an incredibly accurate reconstruction of those events. Indeed, it is fair to say that we will never know more about how and why two Supreme Court nominees were chosen than this book reveals. And if anyone was holding back their real thoughts because they knew of the tapes, it certainly never shows. Not only is Dean able to present a story with the principals speaking in total candor, but his quotation marks actually surround the real words that were spoken and not someone's best recollections. Since virtually all of the key events were taped, this is a record that is surely unique as applied to Supreme Court selections, and probably to any other major governmental decision.
Because there were two vacancies to be filled at the same time, the Powell and Rehnquist stories are fully told here. These include the telephone call in which the President sought to persuade a reluctant Powell to accept the offer, and Powell, showing great reverence for the Court, worrying about whether his eyesight would enable him to do the job for more than a few years. (1) It is clear that Powell's hesitance, and perhaps most important, the reasons for his caution, made him an even more attractive candidate for the President, and they provide a preview as to why he became such a highly respected Justice.
There are three levels of interest that are woven throughout the book. First, there is the story of how an obscure Assistant Attorney General, holding a position (head of the Office of Legal Counsel) that is almost completely unknown even to many lawyers, was chosen for the High Court. Second, the book reveals a great deal about Richard Nixon--his priorities, his prejudices, and his mode of operation. Third, the book describes the process of selecting a Justice, which, to put it charitably, was haphazard at best. Along the way, the narrative points out problems with this process, and the telling raises a number of questions that have continued relevance today as those who care about the Court and its impact ponder how best to choose a new Justice. Those process questions will occupy much of this review, but even if the reader didn't care a whit about them, the book would still be very much worth reading both as a story and as a historical document.
The Story. As White House counsel, one might have thought that Dean would have a major role in the selection process. Perhaps if Dean had not been so young (he celebrated his thirty-fourth birthday during the process (2)) or had he been closer to the President, his part might have been significant, but he was largely a supporting actor during these events. Nonetheless, he had a crucial part in the drama as he suggested Rehnquist as a possible candidate at several key moments, (3) and he was responsible for vetting two candidates who were eventually not nominated--Arkansas business lawyer Hershel Friday and California state appeals court judge Mildred Lillie. (4) Being both author and participant might create some problems, but Dean manages to avoid them by downplaying his role and largely stepping aside to let the tapes tell the story.
The story feels like a mystery as the reader charges through, but there is one big difference--we know how the book will end; we just have very little idea of how we will get there. Repeating all the twists and turns here would spoil the thrill of the chase, but a few highlights should be noted because they demonstrate the completeness of the research that went into the book and set the stage for some of the process issues discussed below.
Dean begins with President Lyndon Johnson's nomination in the summer of 1968 of Associate Justice Abe Fortas to become Chief Justice, replacing the retiring Earl Warren, and details how the Republicans (including then-presidential candidate Richard Nixon) used a filibuster and other tactics to prevent his confirmation, thereby preserving the vacancy for Johnson's successor, whom Fortas's opponents hoped would be Nixon. (5) After Nixon's election, the Chief Justice slot was eventually filled by then-Circuit Judge Warren Burger, who would come to have a great deal to say--in several senses of the word--about filling the 1971 vacancies.
Nixon had campaigned heavily against the Court, particularly its criminal law and busing decisions, and he hoped to be able to remake it in his image by filling a number of vacancies. He was not willing to wait for deaths or resignations, and the 1968 fight had raised some issues of possible Fortas improprieties, which the new administration sought to exploit. How the Justice Department carried out this mission, including the part played by Rehnquist, raises serious issues of separation of powers, not to mention misuse of the Internal Revenue Service and leaks to the press. But it worked: Fortas resigned, and Nixon had a second vacancy to fill in less than six months. (6)
Getting a nominee confirmed was more of a problem. The defeats by a Democratic Senate of two Southern sitting Federal Circuit Judges--Clement Haynsworth and Harold Carswell--are reasonably well known, but even here Dean has some insights into why the Carswell problems were not detected and dealt with before a floor vote ending in defeat for the President. As Dean sees it, the fault lay largely with an ineffective FBI investigation and a lackadaisical vetting at Justice, where the main responsibility was on the shoulders of Assistant Attorney General Rehnquist. (7) Dean suggests that these failures caused some members of the White House staff to lose confidence in the Justice Department and to put in additional checks. The President, however, still appeared to have the utmost confidence in John Mitchell, his Attorney General (who was his former law partner and campaign manager), almost to the exclusion of everyone else at the end of the process.
Eventually, the Fortas vacancy was filled with Circuit Judge Harry Blackmun, who had been suggested by Chief Justice Burger. Blackmun had been Burger's childhood friend and best man at his wedding. (8) But two seats were not enough, and so the administration, fueled by the Fortas success, began working behind the scenes with Congressman Gerald Ford to stir up impeachment proceedings against Justice William Douglas, but to no avail. (9) Then, all of a sudden in early September 1971, the White House got word that both Justices Black and Harlan were in failing health, and by September 17th there were two more vacancies to fill, (10) giving the President four in less than three years. One of these was the Earl Warren holdover, but even three slots to fill is an extraordinary opportunity for a President--Jimmy Carter had no vacancies in his single term and Bill Clinton had only two in eight years--and Nixon set out to fill them with his kind of people.
From the start Nixon saw these appointments as meeting political needs as well as remaking the Court. He had been elected with considerable help from the South, and he saw the appointment of a Southerner as an imperative. The fact that the departure of Justice Black left the region without a member of the Court, plus the pain of the Haynsworth and Carswell defeats, which he blamed in large part on their being from the South, made Nixon all the more resolute to choose someone from below the Mason-Dixon line. He never wavered in this determination. In the end he selected Lewis Powell from Richmond, Virginia, who had previously declined to be considered, but that is not where he began.
The first choice was Virginia Congressman Richard Poff, who had been briefly considered to fill the Fortas seat. (11) In one of the few places where the book is not clear, the reason why Poff's name came to the top of the pile is a mystery. He had geography on his side, he was a conservative, but was not considered a racist by Dean or those in the House who knew him well, and he had been a well-respected member of the House Judiciary Committee. However, he had very little experience in the practice of law, let alone in cases of the kind that the Supreme Court hears. (12) Perhaps most important was that he appeared to be confirmable, in part because he was a member of Congress and in part because he had the support of the Chairman and Ranking Minority members of the House Judiciary Committee, who were both quite liberal and whose support was seen largely to foreclose an attack from the left. (13) Dean had worked for Poff in Congress and for the Law Reform Commission, and held him in high regard, but that does not appear to be how he came to the White House's attention.
In the end, Poff withdrew for personal reasons--he had an adopted young son, whom they had never told of his origins, and the family and their advisers thought it would be harmful for him to learn about this during the confirmation process. (14) Dean tells this part of the story with great empathy for Poff, but with more than a touch of regret: Someone told columnist Jack Anderson the real reason for Poff stepping aside, and when it was printed, Poff's son took it in stride, but it was by then too late for Poff to reconsider. (15)
This is the first of several "what ifs" in the book. Despite Poff's quite modest experience practicing law, he probably would have been nominated and confirmed, which would have meant that there would have been no Justice Lewis Powell. Since Poff was almost twenty years younger than Powell, he probably would have served beyond 1987, the year that Powell resigned. In that case, President Reagan would not have had the opportunity to nominate Court of Appeals Judge Robert Bork, and there would not have been the contentious floor fight that resulted in his defeat, with the bitterness of his supporters that continues to this day. Indeed, the search for the second nominee in 1971 might also have proceeded differently and on a pace less hurried than that dictated, at least in part, by two vacancies on the Court, which postponed arguments in several important cases until those slots were filled. (16)
Next came a series of possible nominees, none of whom made it to the finals. There was Hershel Friday, a bond lawyer from Little Rock, Arkansas, whom Mitchell had known from the American Bar Association. Whereas Poff's service on the House Judiciary Committee arguably provided some relevant experience, Friday had nothing approaching that. Moreover, as Dean reports based on a long interview that he and David Young had with Friday, the almost-nominee apparently had given very little thought to any of the issues likely to come before the Court, and hence might have turned out to be very different from what his supporters had thought he would be. (17)
Mildred Lillie was an experienced trial and appeals court judge in California (18) (more so than was Justice Sandra Day O'Connor when she was named to the Court eleven years later), but she was given serious consideration only because Nixon decided to make political hay by nominating a woman. (19) In contrast to Friday, she made a very favorable impression on Dean. (20) Her problem was that she had a very high reversal rate in the California Supreme Court, (21) probably because she was more conservative than were her superiors at the time. When the ABA gave her an unqualified rating (as it did for Friday), (22) her chances were over.
Two other names were given more than passing consideration, or at least attention. One of them is Senator Robert Byrd who had attended law school at night while in the Senate (23) and had never practiced law. (24) To Nixon, that was part of his appeal. Byrd was more or less a Southerner (West Virginia and a one-time member of the Ku Klux Klan (25)), and Nixon believed that the Senate would never turn down one of its own. (26) In all probability, Nixon would not have nominated him, and he may never have been serious about considering him. However, even allowing Byrd's name to be floated shows how Machiavellian Nixon was about the confirmation process and suggests that, despite his professed desire to remake the Court, politics might win out if push came to shove.
The other name that reappeared from time to time was William French Smith, (27) who became Attorney General under Ronald Reagan in 1981. So far as I am aware (and Dean offers nothing to the contrary), Smith's name never made it into the rumor mill, which might suggest that he was not a serious candidate or that he was being held back in case he was needed at the last moment. His name had been suggested by then-Governor Reagan, (28) and while he was a partner in a major law firm in Los Angeles and a member of the California Board of Regents, (29) he had no obvious qualifications for service on the High Court, especially since he was a corporate lawyer, (30) specializing in labor law, not a litigator. But with no strong negatives, he might have made it through the Senate, and almost certainly would have been a less conservative Justice than William Rehnquist. But apparently, neither Nixon nor Mitchell was sufficiently enthusiastic about him to move him up the list to fill the non-Southern spot.
There had been various self-imposed deadlines for naming both nominees, none of which had been met. Nixon finally decided that Thursday, October 21st, would be the day, (31) but there was one small problem: That was just two days away, and they had no solid candidates. First, Mitchell and Nixon, operating on their own with no staff backup and very little personal knowledge or even papers about the candidates, decided to try for Powell and Senator Howard Baker from Tennessee. (32) Powell comes through as the gentleman that everyone has always described him: deferential to the President and to the request to serve his country; concerned about whether he is up to the job; and insistent upon checking with his wife and two principal law partners before saying yes. (33)
Baker emerged with very little known about him, other than that he was a relatively young Senator from a border state who was at least moderately conservative and had some indeterminate amount of legal experience. (34) This was, of course, almost two years before the Senate Watergate Hearings where Baker would play such a prominent role as the ranking Republican on the Committee--another "what if." Mitchell invited Baker to the Justice Department where he popped the High Court question that took Baker completely by surprise. (35) Baker claimed that he was concerned about money, and there may have been some personal considerations as well since several portions of conversations between Mitchell and Nixon were withheld, almost certainly for privacy reasons. (36) Baker promised to get back to Mitchell shortly, but he did not. He flew to Tennessee and came back with questions and no answers. (37) He asked for more time, but the President decided he could wait no longer, probably because he expected Baker to say no (although he eventually said yes (38)), and this was the day that the announcements were going to be made.
And so it was that at about 10:30 on the morning of October 21st, John Mitchell asked William Rehnquist to come to his office. (39) There is nothing that Dean uncovered regarding what was on Rehnquist's mind when his boss invited him for that chat, but it is hard to imagine that he could have guessed that he would be told that he would be nominated for the Supreme Court of the United States at 7:30 that evening. Or imagine the call that Rehnquist must have made to his wife (who is now deceased): "I hope we don't have anything planned for this evening since the President is going to name me to the Supreme Court on national television, and we have to be at the White House for the announcement."
The decision to name Rehnquist was made by two people: Nixon and Mitchell, but two others had some input along the way. One of them was John Dean, who had known Rehnquist when they were both at the Department of Justice and not only had a high regard for his legal ability, but also knew for a certainty that he was very conservative. (40) Dean had suggested Rehnquist at various times, (41) and it is quite possible that he was the one who kept his name in play. The other person is Richard Moore, a lawyer who had been at Justice where he had known Rehnquist, but was then at the White House where he was performing a variety of public relations and nonlegal duties, as well as serving as a counselor and senior adviser to the President. (42) Dean had suggested Rehnquist to Moore, and Moore had passed the suggestion and his endorsement on to others. (43) John Ehrlichman was a law school classmate of Rehnquist, but was apparently not a Rehnquist booster because Ehrlichman saw no political advantage to the President from picking an unknown white Protestant male lawyer from Arizona. In response Nixon suggested, "Maybe he can get a sex change," to which Ehrlichman responded, "Takes too long." (44)
Nixon had met Rehnquist only once, at a White House meeting on the declassification of records from prior administrations. (45) In those days, Rehnquist had long mutton-chop sideburns and heavy black eyeglasses, wore Hush Puppy shoes, and his clothes would not have been mistaken for high fashion. In fact, that day he wore a pink shirt that clashed with his psychedelic necktie. On leaving the meeting, Nixon asked Ehrlichman, "John, who the hell is that clown," (46) referring to Rehnquist; apparently his attire that day was forgotten or perhaps forgiven when Nixon made him his nominee.
Dean recounts one other story about Rehnquist and how the future nominee saw the process. While the searches were going on, a reporter asked Rehnquist if he was on the list of possible nominees, to which Rehnquist replied in the negative: "I'm not from the South, I'm not a woman, and I'm not mediocre." (47) The reporter related the story to Dean, who repeated it at a meeting in early October at which Rehnquist was present. To his credit, Rehnquist did not deny that he had said what was reported, but defended on the ground that he thought the conversation was off the record. (48)
In the end, one of the most remarkable aspects of the Rehnquist selection is that he was none of the above, but also not a member of Congress, not a Catholic (and preferably an Italian to make Transportation Secretary John Volpe happy (49)), and not even from a state where his nomination might help in the 1972 election. He was also not a member of the establishment bar, or even well known in legal circles. But he did have an outstanding academic record, had clerked for Justice Robert Jackson, and had solid, if not outstanding, legal experience. And, perhaps most important of all, he was very conservative, and there appeared to be no likely opposition, although that prediction proved too optimistic.
More About Nixon. The book would be worth reading for the plot alone, but there is much more for those who can't get enough about Richard Nixon, particularly if the new material is unfavorable, and much of it is. The question of how to define "new" Nixon traits should be answered neither by how much a Nixon biographer knows, nor by how little most of today's college political science majors know. A better test is how much those of us who were riveted by Watergate would think is new, or at least explains Richard Nixon more completely. Under that fairly stringent test, there are a fair number of new insights into Nixon, all of which are nicely tied into the nomination story.
One thing is clear and positive for Nixon: He cared about his nominees to the Supreme Court, and he devoted substantial amounts of his personal time and detailed attention to his selections. Nixon had argued two cases in the Court, (50) which may have shaped his attitudes, but he also saw the Court as a vital institution, capable of good and evil. His 1968 presidential race had made an issue out of the Court's liberal rulings, and he was determined to mold the Court to change the outcomes in the areas of criminal law and busing (and perhaps civil rights cases more generally). There is no indication that he was concerned with other areas of the law--such as abortion, federalism, punitive damages, free speech, affirmative action, let alone gay rights--that were of interest to some at the time and have moved to center stage today. Although vehemently antibusing, the President made it clear that he would not appoint a racist to the Court, (51) and probably not just because the nominee would lose in the Senate.
While Nixon cared about the Court, he was also clear that he saw Supreme Court appointments as opportunities to make political gains through his selections. That is why he wanted a Southerner, a woman, and a Catholic, or hopefully someone who would be a "twofer." And his first question about a prospective nominee was almost always religion or some other politically defining trait in the category of "what would it do for my reelection in 1972?" And if the potential nominee was not of a politically advantageous faith, Nixon suggested, plainly in jest, that he "change his religion." (52)
The tapes especially, but the pre-tapes materials as well, show that those who anointed him "Tricky Dick" were on the mark. From the efforts to keep the Earl Warren seat open past November 1968, through the not-so-veiled threats against Justice Fortas, to the failed impeachment coup involving Justice Douglas, Nixon showed that he was willing to do whatever it took to create vacancies for him to fill. As the Robert Byrd episode showed, he was willing to propose what he and his aides recognized would be seen as an insult to the legal profession (because Byrd had never practiced law), and he deliberately mislead the ABA and the press about his intentions to nominate the Senator. (53) At the end, he withheld all information about his final choices from his staff, including Haldeman, so that they could not leak his decisions to the press. (54)
For those who have listened to other tapes, or have read excerpts from them, the shock will be less, but the decidedly men's locker-room sound of so many of the conversations is jarring. The level of profanity is not what one would hope to hear from the lips of the leader of the free world, but worse things have probably happened in the oval office. Rather, it is the low-level, almost reflexive bigotry that is so appalling. For many years we have known that Richard Nixon did not like Jews and that he harbored the usual stereotypes about them. What comes through here is the almost gratuitous and reflexive slander of Jews for no apparent reason, and, of course, how his aides never protested or took exception. (55)
Italians are among the other targets for the Nixon treatment--"it's too bad we don't have an Italian, an honest Italian judge that I know of," (56) adding later, "[b]ut you don't have an honest Italian, do you?" (57) He also disparaged blacks, even when he was complimenting one such as Massachusetts Senator Edward Brooke: "[H]e's one of the few blacks who really talks in an intelligent way." (58) And in discussing the possibility of a woman appointee, Nixon talked about the Marshall nomination, referring to him as "a dumb black." (59) Once, when he was assessing the quality of current and former Justices, he took a free swipe at former Chief Justice Earl Warren, referring to him as "a dumb Swede. He was thick. [Dumb as hell]." (60) And when the issue arose as to what the commentators would be told before the nomination announcement was made, Nixon called them "left-wing kikes, son-of-a-bitches for the most part," adding, "Don't tell the fuckers anything." (61)
Perhaps the most surprising of Richard Nixon's attitudes are about women. No one expected him to be a feminist or even to support the Equal Rights Amendment, but his views on women were straight out of the nineteenth century. If his words can be believed, he didn't "even think women should be educated," (62) "ever be allowed to vote," (63) or have jobs ("I'm not for women frankly, in any job. I don't want any of them around." (64)). After noting his pleasure that there were none in his Cabinet, he reconsidered: "But I must say the Cabinet's so lousy we [might] just as well have a woman [there] too." (65) He recognized that the time had passed for those views to be accepted, let alone followed or spoken in public, and that there were political advantages to appointing a woman to the Court. There are several suggestions that Nixon's wife and daughters were pushing him to name a woman to the Court, (66) and their demands may have had some influence. But what seems to have persuaded him to consider that option was electoral politics, pure and simple.
In several places, Nixon comes off as somewhat of an elitist, some of the time. He is rather defensive in one place about Duke Law School, where he went, referring to it as not a top-rated place, (67) but above Fordham, where William Mulligan (another potential nominee) was dean before he went on the Second Circuit, and where John Mitchell went. (68) However, Nixon was very impressed with class rank and Supreme Court clerkships (Rehnquist was first in his class and Powell was near the top of his (69)) and with senior partner positions at large law firms (Powell and Smith). He was also very clear that he would not limit his search to people who were already judges. (70)
Last, for all his flaws, Nixon shows that he has a number of skills, including good political instincts on what the people want (save for his small miscalculation known as Watergate). When it came time to prepare the announcement of his nominees, the President repaired to his office, yellow pad in hand, and did the draft of the entire speech himself, which he then dictated to his secretary. (71) He had almost no help in gathering the necessary information, yet he told a unified story of his nominees and how they fit into his vision of the Court that was easy to understand and quite sympathetic to all but his most vociferous opponents. (72) What was even more remarkable was that Nixon wrote the speech when he had chosen only one of the two nominees he was going to announce the next day.
The picture of Richard Nixon painted by these tapes is in many senses quite consistent with the picture that many of us have of him generally: a hard-working, dedicated, very political man, with biases that would not be unusual for someone of his generation and background, so long as they were only expressed in private to those he trusted the most. He shows great insights at times, and seems close to irrational at others. In short, these tapes show Richard Nixon to be a very intelligent man, with many flaws, including some that eventually brought him down.
Lessons About the Process. As both a historical work and as a collection of insights into the character of Richard Nixon and people around him, The Rehnquist Choice is extremely valuable and worth reading without considering any lessons that might be drawn, or insights gathered, from the process that produced Justices Powell and Rehnquist. One fear in attempting to generalize from what happened in the fall of 1971, in one presidency, is that it may be so unique that any conclusions would be misleading. When John Dean came to talk about the book at Stanford Law School, he asserted, without citing particular sources, that others who followed him in the White House told Dean how similar Dean's descriptions of the nomination process were to what they encountered years later. It is difficult to evaluate those judgments, but it at least gives one enough confidence that it would not be moot to make some suggestions about changes that might be instituted in order to avoid some of the pitfalls in future Supreme Court selection processes. Here are six observations/ recommendations, in what seem to me, but perhaps not to others, to be in ascending order of significance.
A. The Role of Serendipity
Unlike openings in other jobs, including even the President of the United States, positions on the Supreme Court occur rarely and on no schedule, thus making planning by those who wish the job, and those who have a chance to nominate someone, very hard to program. Moreover, it is not just whether there is a vacancy, but who is being replaced that matters. A departing Chief Justice creates a different situation from when an Associate Justice retires. Similarly, if Thurgood Marshall had retired in 1989 when William Brennan stepped down, instead of two years later, it is almost inconceivable that Clarence Thomas would have been chosen to replace him since he would have had no prior judicial experience and very little law practice. Or consider the fate of Ken Starr. A young, but fairly senior Justice Department official when he was appointed to the D.C. Circuit Court of Appeals, Starr was considered to be a solid moderate when he was chosen by President George Bush to be Solicitor General in 1989. The implicit promise was that a Supreme Court vacancy would be his, but when that opening came within months of starting his new job, David Souter got the nod instead, and the next vacancy was the Marshall opening.
In the Powell/Rehnquist round, others were much higher on the list, but some withdrew or didn't grasp the ring in circumstances that seem almost quirky. Justice Powell had once before said no, (73) and it was only the need to fill the slot with a Southerner who could be confirmed that led Mitchell to go back to him again. And the most fortuitous appointment of all must surely go to Rehnquist whom, despite his unquestioned ability and conservative views that should have commended him to the President, Mitchell and Nixon almost literally stumbled over and discovered at the last minute. One could more easily plan a path to the presidency or devise a way to be hit by a meteor than figure out a way to land on the Supreme Court. (74)
B. The Lack of a Systematic Search
Perhaps the most remarkable aspect of the 1971 search for nominees was how disorganized and unsystematic it was. This deficiency was doubly hard to understand in light of the importance the President attached to the Supreme Court and the two failed nominations before Justice Blackmun. Moreover, the ages and poor health of several of the Justices were known, and yet, incredibly, neither the Justice Department nor the White House had even a list of a few candidates for whom even the most basic background work had been done.
How one got on the short list also seems to be almost by random chance. Richard Poff had been there before, but why is uncertain. Hershel Friday had the approval of Mitchell and Chief Justice Burger, but it turned out neither of them knew him well or had any real insights into his abilities or views. Mildred Lillie simply emerged because she was a woman, not a liberal, and had considerable judicial experience, albeit in state court. The names of William French Smith and William Mulligan appeared almost out of the blue, and even Lewis Powell and William Rehnquist did not make it because of a careful systematic search.
C. The Vetting Process
As chaotic as the initial search process was, the next step was hardly more assuring. Nominees would be suggested at a meeting, but with very little information about such basic matters as their ages, whether they had practiced law, what else they had done as lawyers, where they went to law school, etc. No one seemed to realize that William French Smith was primarily a corporate-labor lawyer or that Lewis Powell had never argued a case in the Supreme Court. (75) And as close as Howard Baker came to getting a nomination, Mitchell and Nixon knew only that he had practiced law, but had no real idea of what that practice entailed, nor seemingly did it matter to them. (76) There were, in short, no criteria by which candidates could be measured, such as years in practice, type of work done, clients represented, nonlegal experience, or any of dozens of other qualities that might be seen as desirable (or undesirable) in a nominee.
The one issue about which the President seemed to care the most was that his nominees have a conservative judicial philosophy as he defined it. (77) But even then, no one closely examined the candidates or what they had written or said to see if they fit the bill. For Powell and Rehnquist there was no opportunity, given the President's self-imposed deadline. So far as the tapes reveal, neither Mitchell or Nixon, who were the only ones involved at that stage, had any knowledge of Powell's views on any issue, other than what they could assume from his role as the head of a large Richmond law firm that mainly represented business clients. And while they all knew that Rehnquist had a reputation as a dyed-in-the-wool conservative, they had no idea of what that meant, except perhaps on issues of criminal law. Yet not even John Mitchell had an in-depth talk with either one because the decision to nominate them had been made before even the initial conversations. And apparently Nixon was willing to go with Baker with no investigation or even a single substantive conversation.
The situation was only marginally better for those who did not get named. Dean himself vetted Poff, with David Young, (78) yet Dean was a friend and had worked for Poff. (79) It was only at the urging of John Ehrlichman that Dean and fellow White House lawyer David Young met personally with Hershel Friday and Mildred Lillie. The concern was to avoid another Carswell, where an inadequate FBI investigation resulted in much (but not the most) damaging information being brought out in the Senate. The meeting with Lillie satisfied them that she was not a problem, save for her high reversal rate.
Friday was another story. As Dean recounts it, he thought that Friday could be confirmed because he would say anything the White House wanted him to say (80) (although Dean's judgment might have changed once he found out that the ABA would rate him as "unqualified"). According to Dean, Friday's problem was that he had never given a moment's thought to any issue before the Court (81) and didn't even know the Miranda (82) case (83)--the name of the posterboard criminal law decision of the Warren court to which Nixon and other conservatives most often pointed when attacking its rulings. The process was so sloppy that Friday might have been nominated with no one knowing anything about his views, despite the President's clear mandate to nominate only conservatives.
The third aspect of vetting deals with factual investigations into the private and public lives of nominees before their names go forward. Carswell again is the codeword for disaster. Not only did the FBI not learn that he was almost certainly going to be accused (probably with some justification) of having been, and still being, a racist because of his memberships in segregated clubs, his continuing support of prosegregation ideas, and his use of disparaging remarks about blacks, (84) but their sleuthing failed to uncover something that was widely known in the community and would surely have stopped his nomination cold: He sought out other men for sexual encounters while he was married. (85)
The information about Carswell is not the kind that candidates generally volunteer on their own, nor are their supporters likely to raise it, assuming they are aware of it. Some, such as Justice Powell did with his eyesight, level with those involved in the process, but even for Powell, it would surely have been far more prudent to have the White House physician talk to Powell's eye doctor, or even have an independent examination, to be sure that the problem was no worse than they thought. Finally, as the book's afterword makes clear, there were several incidents in the background of William Rehnquist that a prudent administration would have wanted to know before his name went to the Senate, yet no one had time even to ask.
Perhaps the greatest irony about the vetting process is that, despite its sloppiness, Richard Nixon almost certainly got two Justices with whom he was very pleased. If being a conservative was the number one criterion, it is hard to imagine any issue on which Justice Rehnquist was more liberal than the man who named him to the Court. And while Powell's record on the Court may have been more moderate in a few cases than Nixon would have preferred, it seems likely that Nixon would have been quite satisfied both with his overall performance and with the fact that he lasted for sixteen years.
D. The Role of the ABA
What role, if any, the ABA should play in the judicial nomination and confirmation process is a matter of considerable controversy. The current administration has cut out the ABA from the prenomination aspect entirely, even for district and court of appeals judges. Nixon was very concerned that the ABA would disapprove his selections, (86) yet he gave them Friday and Lillie, as well as some names he had no intention of nominating. (87) Although the record is not clear, given Nixon's attitudes about women, he may well always have hoped that the ABA would reject Lillie so that he could take the political credit for trying to nominate a woman, but not have to suffer what he saw as the consequences of having one on the Court. (88) And by the time that he sent over Friday's name, Dean's report had given them pause, and so the ABA's thumbs down was not an unwelcome response. (89)
Dean generally kept his views to himself in the book, but on this issue he opined that the ABA should not be used to prescreen Supreme Court candidates, although he supports using the ABA for the lower courts. Nixon did not give the ABA an advanced opportunity to comment on Powell and Rehnquist, and other presidents since then have followed that practice. Given the various political considerations involved in a Supreme Court selection, and the need (perceived or real) for secrecy, it is hard to see how the ABA can be made part of the preannouncement process if the President is to maintain any flexibility and secrecy before he makes a final decision. But that places even greater pressure on an administration to do a thorough in-house vetting so that an even greater embarrassment than ABA rejection does not occur. Moreover, whenever the ABA does make its views known, it would be much more useful for it to state its reasons (as apparently it did privately to the White House or the Justice Department) instead of just announcing its conclusion that the person is either qualified or not.
E. The Role of the Chief Justice
One of the most jarring aspects of the book was the revelation of how much Chief Justice Burger sought to influence the selection process. The Chief did not simply respond to inquiries about someone he knew (like Justice Blackmun) or even suggest a few names on his own. Instead, the book reveals a pattern of persistent attempts to mold the selection process toward certain candidates and against others. He pushed quite hard for Hershel Friday, (90) even though, as it turns out, he did not know him very well or have any good evidence as to how he would perform on the Court.
What is most appalling of all is his determined effort to persuade the President not to nominate a woman. (91) Apparently Burger believed that having a woman Justice would spoil the atmosphere, that she would not fit in, etc.--all the usual stereotypes. (92) At one point Burger became so agitated over the notion of a female Justice that he delivered a resignation letter of sorts to Mitchell (whom he regularly called on these matters). When Nixon was informed of the threat, he quite wisely told Mitchell to tell Burger that the President would accept his resignation and would not be bullied by anyone. (93) Of course, it was all a bluff, but it nonetheless says a great deal about the Chief and would doubtless have stirred quite a controversy had it been known at the time, or even when Justice Sandra Day O'Connor was named to the High Court in 1982.
It is unrealistic to tell a Chief Justice (or any other member of the Court) and the President who appointed him or her that they should never again talk about anything but the weather, their families, and sports (and perhaps not even the latter given the cases that make it to the Supreme Court). It is especially hard when the President and Justice have a relationship that predates the appointment, as Lyndon Johnson did with Abe Fortas and John F. Kennedy had with Byron White. But that is no excuse for the sustained involvement that Burger had with the selection process, especially where the ultimate choice is one pushed by the Justice. The potential for the "appearance of indebtedness" could run in two directions: from the grateful nominee to the Justice who made it all possible (with repayments in the form of votes in close cases), or from the sitting Justice to the President (in the form of votes on key cases for the administration--like the Pentagon Papers case) in gratitude for naming a friend or former colleague to the Court. Far-fetched, perhaps, but far better that there be no such conversations and hence no basis for rumors, justified or not. (94)
F. The Larger Question Raised by the Process
Richard Nixon was clear to everyone what kind of Justices he would appoint, yet he did not fully succeed in appointing strong conservatives. Justice Blackmun seemed to fit this mold when he first came on the Court, voting so regularly with the Chief Justice that they became known as the Minnesota Twins. But that did not last long, not just in abortion, but also in many other areas, including in the end Blackmun's opinion saying that the administration of the death penalty was so fundamentally unjust that he could no longer support it in any case. (95) Justice Powell was perhaps less of a liberal than Justice Blackmun, but he was probably more in the center of the Court on some issues than it is likely that Nixon expected. Justice Souter surely disappointed the President who nominated him, whereas Justice Thomas has turned out to be even more conservative than most of his opponents feared when he was chosen.
Unlike Powell and Rehnquist, about whom the White House staff knew very little when they were nominated, Dean and others knew a great deal about the views (and nonviews) of Friday and Lillie. Suppose that a Senator had inquired of such a nominee about his views on, for example, abortion, not by asking him directly or by inquiring how the nominee would decide a particular case or issue. Instead, the question might be phrased, "Did you have any conversations with anyone at Justice or in the White House about your views on abortion, and if so, will you repeat those conversations to the best of your recollection?" Assuming such conversations took place and that the nominee would not deny them under oath, the question is whether the Senate should decline to confirm someone who would not answer that question. This in turn raises the question of whether it is appropriate for the President and his aides to make such inquiries if they really care, as I believe they should, about the views of a potential nominee. And if the answer to that question is yes, how can the Senate be denied the right to the same information and be expected to carry out its constitutional advice and consent function?
It is generally accepted that those seeking judicial office, either by election or appointment, should not seek to obtain that office by promising how they will decide cases that may come before them. (96) But there is a wide gulf between specific promises on specific issues and general views about the role of the courts, precedent, federalism, and other topics of current debate, on which most nominees have some views, even if they are not fully worked out. Indeed, do we really want nominees like Hershel Friday, who may be able lawyers and decent human beings, but have given no thought to the important issues of the day that may come before the court to which they are being appointed? And if a nominee actually has views, the appointing and confirming authorities should want to know them before the person starts deciding cases. And if the President or his aides ask for those views--as they should--then the Senate should be entitled to know what answers were given, and if it is denied that information, it may properly reject the nominee.
Two Final Observations. The book has a good deal of humor in it. Some of it comes from the tapes or other conversations, but John Dean's nice turns of phrase and wit supply much of it. For example, he described the unreleased Nixon tapes as being in a state of "indefinite hibernation" (97) before Professor Stanley Kutler's lawsuit opened them up. When Dean was commenting on the failure of the FBI to discover that Harold Carswell was a known homosexual, Dean observed that "[w]hile Richard Nixon was always looking for historic firsts, nominating a homosexual to the high court would not have been on his list." (98) One of my favorites was his description of the film The Sheepman as "not the worst movie ever shown [at the White House], but certainly a contender." (99) And for flights of literary fancy, Dean certainly deserves an award for describing Nixon's decision to float the name of Senator Byrd for the Supreme Court as lighting "the fuse of his whimsical stink bomb and start[ing] it rolling toward Capitol Hill." (100)
My one serious question about the book relates to the final chapter, entitled "Afterword," in which Dean describes Rehnquist's two Senate confirmation hearings--in 1971 when he became a Justice and in 1986 when he was elevated to Chief Justice. Until this point, neither Justice Rehnquist nor any of his supporters would have found anything objectionable of any significance in the book, nor could anyone mentioned in the book have any legitimate complaints that the unflattering materials were not relevant to the story that Dean tells so well and to the overall points he makes about the search process to fill these two vacancies. But for most readers, the afterword, which revives the issue of whether Rehnquist was fully candid in his testimony before the Senate Judiciary Committee, may appear to be a gratuitous attack that does not seem to add anything to the important points that the book makes.
The book itself, as well as the dust jacket, suggests that the reason that this chapter was included was to make the point that the undue haste in making the decision to nominate Rehnquist meant that he had not been vetted properly, which in turn led to his near disastrous initial confirmation hearing. It is surely correct that the decision was made too hastily and that no one should be nominated to the Court without a full investigation and vetting before the announcement is made. But that point could have been made in a page or two, simply illustrating the kind of issues that arose and how a proper vetting would have caught them before the President sent Rehnquist's name to the Senate. Instead, Dean spent twenty pages, detailing the charges and the evidence, and then came to the conclusion, with which he ends the book: "It is now quite clear to me what happened: Rehnquist lied." (101)
The question Dean answers is by no means an unimportant one, nor one on which Dean is unqualified to offer his opinion. But is it a question that belongs in this book, or does its presence suggest to some readers that Dean's real motive in writing the book was to attack Rehnquist? To the extent that others may hold the latter view--and I have talked to some former Rehnquist clerks who feel that way--Dean and his publisher did themselves a disservice by including this chapter. It occurred to me that Dean might have been encouraged to include this material as a means of increasing sales, but neither the jacket nor the little promotional material that I have seen supports that hypothesis.
The inclusion of this afterword also cannot be explained on the theory that Dean was opposed to Rehnquist and knew that a vetting would make him so vulnerable that he could not be confirmed. Dean is clear that he supported Rehnquist and indeed urged him on the President and others. Moreover, even after the 1971 confirmation hearing, Dean considered Rehnquist enough of a friend that he asked him to perform the marriage ceremony for Dean and his bride to be, Maureen. (102) On the other hand, it is also apparent that Dean no longer shares, if he ever shared, the ultraconservative judicial philosophy of the Chief Justice, but even that seems an insufficient reason to attack him so energetically and emphatically over his confirmation testimony. Perhaps there is no better explanation than that Dean's research led him to his conclusion and that, like the excellent historian that he is, he decided he had to tell the world what he had found. That is a perfectly sensible reason for writing this chapter, but it does not fully justify its inclusion in this otherwise extremely evenhanded book.
There is, moreover, potentially a nice ethical question raised by Dean's implied suggestion that more vetting of Rehnquist would have helped. There would be no issue if the vetters had found the incidents that caused trouble at the confirmation hearings, and the President decided not to nominate Rehnquist because of them. Similarly, if, when confronted with what others say are the facts, Rehnquist agreed that his version would not differ from that given by others, with the Senate left to decide his fate, that too would present no problem. But if Dean means to imply that it is proper to "shape" a nominee's testimony by, for example, crafting the story to maintain the nominee's position of innocence, while steering clear of dangerous shoals put forth by others, I would beg to differ. Whatever the lines are beyond which a lawyer may not go in shaping the testimony of a witness in a court thai, confirmation hearings for any federal office, but especially for a Justice of the Supreme Court, should be conducted at a much higher ethical level. Of course, nominees should be fully prepared on all issues, ranging from judicial philosophy to their personal and professional lives, but that should not include a license to adjust their recollections to avoid controversy and obtain confirmation. The American people are entitled to know what kind of a person is being nominated to the Highest Court in the Land, and I think that John Dean would agree with that proposition, although I am less sure that we agree on where the lines should be drawn in the vetting and confirmation process.
However one comes out on the afterword, The Rehnquist Choice should be read by everyone who cares about the Supreme Court and how its members are chosen, as well as by readers who like a good story, crisply and vividly told.
([dagger]) Counsel to the President of the United States, 1970-1973.
(1.) Pp. 200-01, 214-18.
(2.) P. 174.
(3.) Pp. 127, 156, 185.
(4.) P. 155.
(5.) Pp. 3-4.
(6.) According to an interview given by Mitchell while he was still Attorney General, a memorandum written on May 1, 1969 by Rehnquist formed the legal basis on which the Justice Department proceeded to investigate Fortas while he was a sitting Justice. Pp. 5-8. Dean was unable to find the memorandum at the National Archives, p. 6, but the author of this review obtained a copy in September 2002 through a Freedom of Information Act request, see 5 U.S.C.A. [section] 552 (West 2003), to the Department. The memorandum makes no mention of Fortas nor discusses the question of what level of evidence is needed to start such an investigation. Indeed, the question presented--"whether a member of the federal judiciary is constitutionally immune from being prosecuted for an alleged violation of a criminal statute" while in office--would appear to be among the least significant questions when any Justice Department was considering a criminal investigation of any sitting federal judge, let alone a member of the Supreme Court. Memorandum from Assistant Attorney General William Rehnquist (May 1, 1969) (on file with author). The Justice Department subsequently located one other memorandum written by Rehnquist, dated May 2, 1969, bearing on the general subject: "which federal statutes and which Canons of Judicial Ethics might be violated if a judge improperly received money to influence the Department of Justice's determination of whether to file criminal indictments." The discussion is only five pages, and it also contains no hint that Justice Fortas was the possible subject, nor does it deal with the other issues raised by such an investigation. Memorandum from Assistant Attorney General William Rehnquist (May 2, 1969) (on file with author).
(7.) P. 15.
(8.) P. 23.
(9.) Pp. 24-26.
(10.) P. 31.
(11.) P. 34.
(12.) Pp. 34, 38-39, 76.
(13.) P. 67.
(14.) P. 119.
(15.) P. 121.
(16.) P. 88.
(17.) Pp. 166-68.
(18.) Pp. 175-77.
(19.) P. 104.
(20.) P. 175.
(21.) P. 177.
(22.) Pp. 135,235.
(23.) Pp. 134-35.
(24.) P. 133.
(25.) P. 126.
(26.) P. 133.
(27.) Pp. 34-73, 112, 195, 225.
(28.) P. 39.
(29.) P. 51.
(30.) P. 39.
(31.) P. 199.
(32.) P. 205.
(33.) P. 216.
(34.) P. 206.
(35.) P. 207.
(36.) Pp. 207-08.
(37.) Pp. 239-40.
(38.) P. 245.
(39.) P. 251.
(40.) Pp. 129, 139.
(41.) Pp. 127, 156.
(42.) Pp. 127-28.
(43.) Pp. 127, 228.
(44.) P. 139.
(45.) P. 85.
(46.) P. 86.
(47.) P. 191.
(48.) P. 191.
(49.) Pp. 143-44.
(50.) P. 35.
(51.) Pp. 41, 103.
(52.) P. 231.
(53.) Pp. 146, 200.
(54.) P. 243.
(55.) "[A]s long as I'm sitting in the chair there's not going to be any Jew appointed to that Court, not because they're Jewish, because there's no Jew, Pat [Buchanan, senior aide], that can be right on the criminal law issue," p. 147; "They're all hung up on civil rights," p. 148; referring to members of the ABA judicial evaluation committee as "kikes," p. 249; "they leak, the Jews leak, John [Mitchell], you know that," p. 247; and on his willingness to fill what was once referred to as the Jewish seat on the Court, "Well, how about after I die?" p. 73.
(56.) P. 69.
(57.) P. 73.
(58.) P. 54.
(59.) P. 184.
(60.) P. 97.
(61.) P. 249.
(62.) P. 138.
(63.) P. 155.
(64.) P. 104.
(65.) P. 104 (alterations in original).
(66.) Pp. 63, 82.
(67.) P. 211.
(68.) Pp. 203,209-11.
(69.) Pp. 246, 253.
(70.) P. 88.
(71.) Pp. 241-42.
(72.) Pp. 253-60.
(73.) P. 16.
(74.) One way to lessen (but not eliminate) the problem of uncertainty would be to amend the Constitution to have fixed terms for judicial (or just Supreme Court) offices, or to impose a mandatory retirement age. There may be reasons to support such a change, but lack of certainty in filling vacancies would not be high on the list.
(75.) P. 255.
(76.) P. 227.
(77.) P. 88.
(78.) P. 91.
(79.) Pp. 42-43.
(80.) P. 160.
(81.) P. 159.
(82.) Miranda v. Arizona, 384 U.S. 436 (1966).
(83.) P. 170.
(84.) P. 20.
(85.) Pp. 19-20.
(86.) P. 188.
(87.) Pp. 153, 157.
(88.) P. 223.
(89.) When told that Friday and Lillie had both been tamed down, Nixon exclaimed, "Good," and then as he got the details on Lillie being found unqualified, he added, "Great." P. 235.
(90.) P. 185.
(91.) P. 184.
(92.) After asserting that the Senate could not vote against the first woman, just as they could not vote against the first Negro "provided she can read and write," Nixon backtracked: "On the other hand, the main problem is [the men on the Court]. You know, that life there is very tough. They live together, they talk together, they have those conferences, and the rest, and you can't convince the Chief Justice [on this question]." P. 100 (alterations in original).
(93.) Pp. 180-81.
(94.) Another example of an inappropriate closeness between the Chief Justice and the White House was the willingness of the White House to accommodate Burger's requests that he be given the use of military aircraft for his travel (whether business or pleasure or a combination was not specified). P. 31. Had it been known at the time, it surely would have raised serious questions of the appearance of impropriety for the head of the executive branch to be doing such favors for the Chief Justice of the United States, when the executive branch is the most frequent litigant before the Supreme Court.
(95.) Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting from denial of certiorari).
(96.) See generally Minn. Republican Party v. White, 536 U.S. 765 (2002) (striking down rule prohibiting candidates for judicial office from "announcing" their views on disputed legal or political issues, in contrast to rule prohibiting candidates from "pledging" or "committing" to decide specific issues that may come before them, which was unchallenged).
(97.) P. ix.
(98.) P. 20.
(99.) P. 70.
(100.) P. 132.
(101.) P. 284. There were two separate matters that Dean describes in which Rehnquist's truthfulness was called into question. One related to the charges that he had challenged black voters at the polls in Phoenix, Arizona in 1968, which he vigorously denied. Pp. 270-73. The other charge related to a memorandum regarding the pending school desegregation cases that were decided in Brown v. Board of Education, 347 U.S. 483 (1954), that he had written while a law clerk to Justice Robert Jackson. The dispute was over whether the views, which would have supported continued segregation of schools, were his or those of the by-then-deceased Justice. Pp. 274-84. Dean's statement quoted above appears at the end of the discussion of the Jackson memo, but it is unclear whether it applies to just that incident or the voter challenges also.
(102.) Email from John Dean to the author (Sept. 9, 2002) (on file with author).
Alan B. Morrison *
* Mr. Morrison was the Irvine Visiting Fellow at Stanford Law School from September 2001 through December 2002, while on leave from the Public Citizen Litigation Group. Mr. Morrison and his Litigation Group colleague Patti Goldman successfully represented University of Wisconsin historian Stanley Kutler in his lawsuit that pried loose from the National Archives the White House tapes that form the core of this book and that the former President fought so hard for so many years to keep secret.
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|Author:||Morrison, Alan B.|
|Publication:||Stanford Law Review|
|Article Type:||Book Review|
|Date:||Apr 1, 2003|
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