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

AuthorMorrison, Alan B.
PositionBook Review

THE REHNQUIST CHOICE: THE UNTOLD STORY OF THE NIXON APPOINTMENT THAT REDEFINED THE SUPREME COURT. By John W. Dean. ([dagger]) New York: Free Press. 2001. 333 pp.

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...

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