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

• Author: Greenberg, David
• Position: 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...