Introduction: The Backstory
The heart of the story of William Rehnquist's appointment to the Supreme Court begins on September 17, 1971, and ends with an announcement on October 21, 1971. That story begins in the next chapter. First, it is important to understand the backstory.
It is well known that Richard Nixon made extraordinary use and abuse of his presidential powers. It is not widely known that those uses and abuses also related to the Supreme Court. More than any president since Franklin D. Roosevelt, he worked hard to mold the Court to his political liking. That meant not only making conservative appointments; it also meant creating appointments. William Rehnquist, who would be Nixon's most important appointment, was actively involved in the efforts to create vacancies on the Court while serving as an assistant attorney general. It is not an overstatement to say that Rehnquist, working with Nixon's attorney general, John Mitchell, and others, misused the resources and powers of the Department of Justice, and other executive branch agencies, to literally unpack the Court by removing Life-tenured justices they found philosophically or politically unacceptable. It was all part of a strategy that commenced even before Nixon assumed office.
Resignation of Chief Justice Earl Warren
The scheme began during the 1968 presidential campaign. The vacancy on the Supreme Court awaiting Richard Nixon when he became president was not an accident. Nixon had made certain that that vacancy would be his to fill. During the 1968 presidential campaign, by a letter of June 13, 1968, Chief Justice Earl Warren informed President Lyndon Johnson that he wished to resign "not because of reasons of health or on account of any personal or associational problems, but solely because of age." Employing the easy candor that characterized all his decisions, Warren explained it was time "to give way to someone who will have more years ahead of him to cope with the problems which will come before the Court."
Candidate Richard Nixon, and his campaign manager and law partner John N. Mitchell, knew exactly why Earl Warren had resigned when he did, five months before the November election decision. The politically savvy Warren, a former governor of California, believed that Nixon would win. And Nixon's "law and order" presidential campaign often targeted Warren's Court. As Nixon biographer Stephen Ambrose observed, "By 1968, Nixon had become almost as critical of the Warren court as he was of the Johnson Administration. He was promising, as president, to appoint judges who would reverse some of the basic decisions of the past fifteen years. When Warren resigned, reports spread quickly that he had chosen this moment to do so because he feared that Nixon would win in November and eventually have the opportunity to appoint Warren's successor." Nixon did not attack Earl Warren personally as many conservatives did. But he made sure that, as president, he would select the next chief justice.
Less than two weeks after receiving word that Warren wished to retire, President Johnson called the press into the Oval Office to announce: "I have the nomination for the chief justice. The nomination will go to the Senate shortly. It is Justice Abe Fortas, of the State of Tennessee," whom Johnson had placed on the Court in 1965. To fill the Fortas seat as associate justice, Johnson added, "I am nominating Judge [Homer] Thornberry, presently on the Fifth Circuit." The Democratic president had nominated two of his closest cronies, men he knew would continue the judicial activism of the Warren Court and the liberalism that Lyndon Johnson had embraced throughout his political career. It would prove a mistake for all.
While no one could read the U.S. Senate better than Lyndon Johnson, given his many years as its majority leader, in this instance he misread his strength as a lame-duck president. With Johnson not seeking reelection, and his vice president Hubert Humphrey fading in the race with Nixon, Senate Republicans, joined by southern Democrats who were less than enamored with Justice Fortas's position on civil rights, decided to fight the Fortas nomination.
Publicly, Nixon remained above the fray. Privately, he encouraged Senator Robert Griffin (R-MI), to attack Fortas's elevation to chief justice. The effort to block the nomination took several tacks. At the outset, Senator Griffin tried to make a point of Fortas's close relationship with President Johnson, but his Republican colleague on the Judiciary Committee, Senate minority leader Everett Dirksen, dismissed that avenue. Dirksen observed that presidents regularly appointed "cronies" to the Supreme Court, citing Abraham Lincoln selecting his campaign manager David Davis, President Harry Truman appointing his private adviser Fred Vinson, and more recently President Kennedy sending his lieutenant Byron White to the Court.
As his biographer Laura Kalman notes, Fortas's opponents then found an endless arsenal among his own opinions as a member of the Warren Court that could be used against him. For example, Republican senator Strom Thurmond of South Carolina spent several hours berating him about the Warren Court's criminal law holdings, even holding Fortas responsible for a ruling made before he arrived. The Senate Judiciary Committee called a witness from the Citizens for Decent Literature, who had examined fifty-two of the Court's rulings and determined that Fortas's vote had prevented the Court from finding obscenity in forty-nine of the cases. In addition, the witness had a slide show (later reviewed by the senators, and press, in a closed session) to display the types of pornographic materials he found offensive but that Justice Fortas had tolerated.
Most damaging, however, Senator Griffin received an anonymous tip from an American University employee, where Fortas was teaching a seminar at the law school, that the school had raised "an exorbitant sum from businessmen to pay Fortas's salary." At that time it was not unusual for a justice to earn outside income by teaching; but in this case the amount was relatively large and possibly tainted. This was reason to reopen the hearings, which revealed that Fortas's former law partner, Paul Porter, had gone to friends and clients to raise $30,000, with half going to the American University law school and the other half going to Fortas. Porter said that Fortas had not been told of this arrangement, but the Senate made much of the appearance of impropriety of Fortas's $15,000 fee, which amounted to 40 percent of a Supreme Court justice's salary at that time.
When the Fortas nomination came to the Senate floor, the Republicans mounted a historic filibuster the first against a Supreme Court nomination. The Johnson White House lacked the political muscle to prevent this unless, it was said, Richard Nixon urged a halt. But Nixon refused to comment publicly, and through backchannels he sent advice and praise to the Republicans' effort. On October 1, 1968, when the Senate failed to vote for cloture (thus ending the filibuster), Justice Fortas, realizing that his nomination was doomed, requested that Johnson withdraw it. With the Fortas nomination defeated, the Thornberry nomination became moot. Given the limited time available, Johnson could name no successor to Chief Justice Earl Warren. The vacancy for chief justice awaited Nixon.
Ousting Abe Fortas
The story of how Richard Nixon created a second opening on the Court has never been fully told. After winning in November, Nixon arranged for retiring Chief Justice Earl Warren to remain on the Court until the end of the Court term in June 1969. This gave the new president six months to select his chief justice. Ostensibly to show Earl Warren his appreciation for remaining, but in truth because Nixon wanted to size up the remaining eight still on the Court for himself, he decided to have a White House dinner to honor the retiring chief justice. Of particular interest to Nixon were five justices William O. Douglas, Hugo Black, Thurgood Marshall, Abe Fortas, and William Brennan who with Earl Warren formed the core of the Court's controlling liberal voting bloc.
The "Earl Warren Dinner" on April 23, 1969, was a lavish, black-tie affair, with the members of the Supreme Court and wives, Earl Warren's family, Nixon's cabinet and wives, and his former law partners and their wives heading the guest list. Richard Nixon treated his old enemy Warren like a visiting head of state, starting with a private meeting with wives in the Yellow Oval Room in the family quarters, then a walk down the Grand Staircase with the Marine Band playing, where about 110 well-wishers including the chief's family and friends awaited and watched, and finally with "Ruffles and Flourishes" to usher everyone into the East Room for a formal dinner, which ended with a convivial, and witty, toast to the chief justice by the president. Astute observers could have noticed that the new president's guest list included three men he was actively considering for the Supreme Court: Thomas E. Dewey, Herbert Brownell, and Warren Burger.
Only a few Nixon aides knew of the president's thinking, and even fewer knew of his hidden agenda. Nixon wanted to create additional vacancies, and the Earl Warren Dinner was typical of the public misdirection that concealed his true plans. White House aide John Ehrlichman, then counsel to the president, reported in his memoir that "the Justice Department was hearing rumors [at this time] of Justice Abe Fortas' dealings with [convicted] financier Louis Wolfson. By May 1969, Life magazine had written an exposé of Fortas' agreement with Wolfson, and Nixon cleared his desk of other work to focus on getting Fortas off the Court." Ehrlichman didn't say that it was the Department of Justice that was spreading rumors and leaking this information to Life reporter William Lambert. Ehrlichman had been given advance proofs of the Life story several days prior to its publication, scheduled for Sunday afternoon, May 4. The Justice Department had passed along the fact that, while sitting on the Supreme Court, Fortas had accepted a $20,000 retainer from Louis Wolfson, who was under investigation by the Securities and Exchange Commission (SEC). (He would later be indicted and convicted of fraud.) At the time of the investigation, Wolfson bragged that his friend Abe Fortas was going to help him.
On May 1, three days before publication by Life, Assistant Attorney General William Rehnquist sent Attorney General Mitchell a memorandum providing a precedent for the Department of Justice to investigate the Fortas-Wolfson relationship. To date, this memo has not surfaced at the National Archives with other Department of Justice papers of the period. Nonetheless, the contents of the memo and the reason it was written by Rehnquist have been reported. Veteran Washington journalist and author Robert Shogan interviewed John Mitchell in 1971 while he was still attorney general, and Mitchell in turn (after waiving any attorney-client privilege with his constitutional lawyer) opened the door for an interview with Rehnquist. Although additional information has surfaced in the years since Shogan published A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court (1972), this book recorded Rehnquist's crucial role.
Mitchell told Shogan, "We were struggling to find answers to what we should or shouldn't do." With good reason. For the Department of Justice, as an arm of the Executive Branch, to investigate or prosecute any federal judge, not to mention a Supreme Court justice, certainly raised fundamental legal issues, and the investigation of Fortas was uncharted. Article III of the Constitution provides: "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior." There is no express provision in the Constitution respecting removals, except for Article II, which provides for removal from office of "all civil officers of the United States" (including judges and justices) by impeachment. Alexander Hamilton wrote in The Federalist No. 79: "The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government." He added, "Nothing can contribute so much to firmness and independence [of the judicial branch] as permanency in office." Of impeachment, Hamilton further noted: "This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges."
Mitchell did not need a constitutional lawyer to understand the limits on his investigative powers relating to Abe Fortas. According to Shogan, he learned (I suspect from Henry Petersen, who had the necessary institutional memory) that the Justice Department had always "been hesitant to seem to threaten the independence of the judiciary." Investigating a Supreme Court justice could place the Justice Department on thin ice, because the power of impeachment belonged exclusively to the Congress.
It was for this reason that Mitchell turned to the "intellectual adroitness" of Rehnquist, a former Supreme Court law clerk, for help. Shogan reported the following:
(1) Rehnquist "took no part in the direct investigation" of Fortas, which was handled by Will Wilson and Henry Petersen of the criminal division. Rather, Rehnquist was asked, as he himself put it, "to assume the most damaging set of inferences about the case were true" and to "determine what action the Justice Department could take."
This was a remarkable assignment. The Justice Department was deciding how to deal with one of the nine highest judicial officials of the nation; whether and how to cross the constitutional divide of a judicial independence. Presumably Rehnquist was to make certain the Department of Justice acted in a constitutional manner. Yet he was told to ignore the facts and assume the worst and most damaging inferences. Common sense and careful legal analysis would demand facts, not inferences. The only thing more surprising is that he took the assignment. This is Alice in Wonderland, not legal analysis.
(2) The worst inference Rehnquist could draw was that Fortas, while sitting on the Supreme Court, had somehow intervened in the government's prosecution of Wolfson's stock market activities. (In fact he had not.) Based on this (false) inference, Rehnquist searched the federal criminal code, and found one provision that "seemed to cover the Fortas-Wolfson relationship, as Rehnquist understood it." It was a statute that made it a crime for "officers of the judicial branch" to be rewarded "for services rendered on behalf of another person before a Government department or agency in relation to any particular matter in which the United States is a party." Shogan notes, "Just what services Fortas had been expected to render in return remained to be established, but this was not Rehnquist's responsibility."
(3) Having found a possibly relevant federal criminal law, "Rehnquist next sought to determine whether the Justice Department could prosecute Fortas for violating that law while he remained on the Court." Rehnquist found no precedents that "fit the present case exactly." But he did find that "in 1790 the First Congress, which included among its members James Madison and other drafters of the Constitution, had passed a law making it possible to prosecute Federal judges for bribery." In addition, Rehnquist found that six years later (1796), the third attorney general of the United States had "held that a judge could be called to account for unlawful behavior by criminal indictment as well as by impeachment." Shogan reports that "Rehnquist believed that Attorney General Lee's conclusion was well grounded enough for Attorney General Mitchell to follow some 170 years later. On May 1 Rehnquist sent Mitchell a memorandum advising him that if the department had the evidence, it could prosecute Justice Fortas."
Shogan had no reason to examine the basis of Rehnquist's advice, but it is easy to do so. Most striking is what Rehnquist apparently did not tell Mitchell: The 1790 bribery law was not necessarily designed to prosecute judges while in office; rather it provides a remedy after they had been removed by impeachment. The language and history of the Constitution clearly suggest that Congress, not the Executive Branch, is responsible for policing "good behavior" of Supreme Court justices.
Nonetheless, Rehnquist's advice gave Mitchell the solace and authority he needed. Mitchell was just getting warmed up. Before the Life story hit the streets he had his press man, Jack C. Landau, obtain a copy of the magazine. (Landau sent a U.S. marshal to New York to pick it up.) Shortly before publication Jack Landau was working his Rolodex, frantically calling reporters who covered the Justice Department and the Supreme Court to give them a heads-up on the coming story. As Shogan observed, this action "put the Justice Department in the dubious position of promoting Life's exposé."
The Life story was front-page news. Mitchell, proud of his handiwork, boasted of it at a White House staff meeting on Tuesday, May 6 (before meeting with the Republican leadership), and revealed his further plans for the high court. These were duly noted by presidential aide Patrick Buchanan, who dashed off a memo to the president reporting that the "Attorney General has hinted this morning that this scandal is only a part of what may soon be revealed about Fortas and other 'judges and justices.'" Mitchell was bolstered by Fortas's failure to respond to the Life story. His lack of response prompted The Washington Post to call for his resignation. Members of the House and Senate quickly joined the Post to form a chorus.
Although William Lambert denied that the Nixon administration leaked the Fortas story to Life, everyone believed (correctly) that the administration was responsible. Both Republicans and Democrats on Capitol Hill assumed that Nixon and his men were orchestrating the ouster of Fortas. This truth was all but publicly confirmed when it was soon leaked that John Mitchell made a secretive visit to Chief Justice Warren's chambers to discuss Fortas.
On May 7, Mitchell's long black limousine pulled quietly into the basement garage of the Supreme Court Building, and the attorney general was whisked through the building for a confidential session with the chief justice. Mitchell had not met Earl Warren before the White House dinner a few weeks earlier, but the glow of good feeling still radiated from that evening.
While there was incipient talk of impeaching Fortas in the House of Representatives, Mitchell hoped to enlist Earl Warren and the others on the Court to persuade Abe Fortas to resign. To bolster his case, Mitchell carried documents that the Department of Justice had just received from the Internal Revenue Service, which had subpoenaed the Louis Wolfson Foundation. These showed that Fortas had agreed to more than a onetime payment of $20,000 from Wolfson: rather, the Wolfson Foundation had arranged to pay Fortas $20,000 a year for Life, and should he predecease his wife, the foundation would pay Mrs. Fortas as long as she might live. At the time this was not an unusual arrangement. Justice William O. Douglas had a similar agreement with a foundation, and one of the judges Mitchell was reviewing for promotion to the Supreme Court, Warren Burger, had long received fees for his service on the board of the Mayo Clinic. Many justices received handsome fees for lectures. Mitchell mentioned other documents as well: Wolfson-Fortas correspondence in which Wolfson's case before the SEC had been discussed, and "one letter [in which] Wolfson asked Fortas's help in obtaining a presidential pardon [by having former President Lyndon Johnson request that Richard Nixon grant it]." Mitchell reported that Louis Wolfson, who was now serving his prison term, was cooperating with the Department of Justice. The attorney general ended his visit with the implicit message: If Fortas resigned, the criminal investigation by the Department of Justice would end, saving Fortas and the Court any embarrassment.
Did the Justice Department have the goods on Fortas? Not even close. Mitchell's talk was pure bluff. On May 10, Wolfson met with FBI agents and Assistant Attorney General Will Wilson, who headed the Justice Department's criminal division. Wilson had been spearheading the investigation of Fortas with the avowed purpose of removing him from the Court. To the chagrin of Wilson, not only did Wolfson not have any evidence of wrongdoing by Fortas, he exonerated the justice. Wolfson told the government's top prosecutor that Fortas had done nothing for him, nor had he ever hinted that he might. There had been no quid pro quo.
Mitchell's next move was political hardball. To increase the pressure on Fortas, the Department of Justice reopened an old investigation that focused on the two people closest to Abe Fortas his wife, Carol Agger, a highly paid tax law specialist, and his former law partner, Paul Porter. A Washington, D.C., grand jury was convened to determine if documents allegedly misplaced but purportedly later found in Agger's office safe had been deliberately withheld when they had been subpoenaed in a price-fixing case several years earlier. The grand jury was exploring whether Agger or Porter had obstructed justice a serious felony by withholding the documents. Lyndon Johnson's Justice Department had investigated this question and found nothing improper, deciding the delay was not an effort to impede the earlier investigation. Reopening of the matter by Richard Nixon's Justice Department was purely a means to torture Fortas.
By the time Fortas presented his plight to his brethren, he had made the decision to retire. More remarkably, he got no sympathy from his colleagues. They treated him as a condemned man. Not one protested that he had broken no law. Not one acknowledged that other justices at the conference table had accepted fees from charitable foundations. Not one suggested that Fortas should stay and fight. Richard Nixon and John Mitchell had intimidated them all.
By May 14, 1969, it was over. Mitchell's bluff had succeeded beyond his wildest expectations. Chief Justice Warren had his secretary call the White House. Dwight Chapin took the call and typed a note at 4:20 PM that he slipped to the president, who was in a bipartisan leadership meeting: "The Chief Justice needs to talk to you urgently. I have told his office that you will call at 4:45 PM" Nixon nodded. At the appointed time he excused himself from the meeting to call Earl Warren, and learned that Abe Fortas was resigning. Nixon, who was scheduled to deliver a major speech on Vietnam to the nation on national television that evening, told Warren that he did not want anything distracting from his speech, so the White House would not announce the resignation until the next day. When the letter arrived at the White House, the chief justice had penned a note to the president, requesting that Fortas "be advised shortly before the release in order that he might inform President Johnson before he hears it on the radio." This was fine with Nixon.
Haldeman informed John Mitchell of the news. At the Justice Department there was a small celebration in the attorney general's office. Mitchell summoned Will Wilson and his deputy Henry Petersen to congratulate the team that had been running the smoke machine. When Deputy Attorney General Dick Kleindienst stepped off the back elevator and into Mitchell's office, he was elated by the news. Kleindienst said the occasion called for a drink, so they opened the bar, pouring heartily to toast their success. The celebration was capped with a call from the president, congratulating them on a job well done.
The next morning, before the White House could advise Fortas that they were going to announce the president's acceptance of his resignation, a report was on the wires announcing the resignation. What happened was ironic: the Los Angeles Times ran a story claiming that the Justice Department believed the documents it had obtained from Wolfson showed that Fortas had been willing to assist him with his SEC investigation. It was the result of another Justice Department leak to pressure Fortas, before learning he had folded. When Fortas read the story, he was outraged; he knew such an interpretation was not possible, nor had he ever expressed such a willingness. Fortas called the Supreme Court's press office, and ordered that they release the news of his resignation immediately. Fortas couldn't have cared less that this was a breach of protocol, since his resignation had not been accepted by the president. Nor, given the treatment he was getting from the Nixon administration, did he give a hoot if releasing the announcement displeased Richard Nixon.
The Fortas resignation meant that Richard Nixon now had two seats to fill on the Court: Earl Warren's center seat and the seat of Associate Justice Abe Fortas, who was leaving the Court at fifty-nine years of age. It also meant that two of the Court's most liberal justices were gone. Nixon's aggressive Posture toward the high court was paying off in a big way, with the help of John Mitchell and his hard-nosed team at the Justice Department, Rehnquist among them.
Selecting a Chief Justice
Nixon's first major appointment would prove to be the easiest of all of the four seats that he eventually would fill. After looking briefly at some candidates, more as a matter of courtesy to Republican elders than in hope of finding a new chief justice, the president named his man and watched him sail through the Senate.
Shortly after his November 1968 election victory, Nixon told his attorney general designate, Mitchell, that they should consider appointing President Eisenhower's attorney general, Herbert Brownell, as chief justice. This idea never progressed, however, because Brownell took himself out of the running. So did Eisenhower's second attorney general, William P. Rogers, whom Nixon did convince to take the Post of secretary of state. J. Edgar Hoover's biographer, Curt Gentry, claims that it was the FBI director who took these men out of contention, because he had worked for them both and despite claiming them both as friends, he did not want them on the Supreme Court. Regardless, both Brownell and Rogers withdrew and suggested a candidate that Nixon had already been considering: Warren Burger, the chief judge of the prestigious United States Court of Appeals for the District of Columbia.
Nixon also had considered former New York governor Thomas Dewey, the onetime Republican presidential standard-bearer. But Dewey, then in his late sixties, thought himself too old and was not interested. The rumor that Nixon was considering elevating Associate Justice Potter Stewart prompted Stewart to make a trip to the White House to tell Nixon that it was unwise to elevate a sitting justice to chief justice as President Johnson had tried to do with Fortas. In fact, Nixon was not considering Justice Stewart, for Nixon was less than impressed with Stewart as a jurist.
Warren Burger became the leading contender early. He was energetically seeking the job. He was an able politician who realized that his judicial philosophy was exactly what Richard Nixon sought. Burger had learned this in 1967, when he received a letter from Nixon complimenting him on a "law and order" article he had written for U.S. News & World Report. The article was accompanied by a picture of the white-haired jurist, a man who looked like a chief justice from central casting. Nixon referred to and quoted from the Burger article often during his 1968 campaign. Following his inauguration, the new president requested that Judge Burger come to the White House to administer the oath of office to his new cabinet appointees, and after the swearing-in ceremony, Nixon had Burger join him in the Oval Office for a conversation. Nixon asked Burger, who was broadly familiar with the legal community, if he would give John Mitchell his suggestions for men who should be considered for federal judgeships, including the Supreme Court. The president said he did not care if they were Republicans or Democrats so long as they were solid conservatives. Burger was flattered, and pleased to assist.
Among the names that Burger initially suggested to John Mitchell were G. Harrold Carswell, a forty-nine-year-old judge on the United States District Court for the Northern District of Florida, and Burger's longtime friend Judge Harry Blackmun, a sixty-year-old Federal appeals court judge sitting in the Eighth Circuit. Burger's recommendations were added to a master list that was being prepared by Rehnquist. The list also included a recommendation made personally to Mitchell by Senator Ernest Hollings (D-SC) for Judge Clement Haynsworth, a judge in his mid-fifties on the United States Court of Appeals for the Fourth Circuit; and a candidate being urged by Senator Harry Byrd (D-VA), Lewis Powell, a sixty-one-year-old Democrat from Virginia and the former president of the American Bar Association (ABA).
While the media attention was still focusing on the resignation of Abe Fortas, Mitchell asked Judge Burger to come to his office at the Justice Department to review possible candidates to fill the Fortas seat. Mitchell also requested that Kleindienst join the meeting, which Kleindienst later described:
I had never met Warren Burger, but I had argued an appeal before him two or three years before. When I walked into Mitchell's office I easily recognized his distinguished features and warm manner. He laughed when I reminded him of the case that I had argued before him....
Mitchell and Burger then spent the next hour or two going over a long list of judges, lawyers, and professors. Burger was familiar with almost every person on the list. He knew most personally and commented specifically about the judicial philosophy of nearly all. What impressed me even more, however, was the absence of negative remarks about the persons he discussed. He sought only to point out the positive qualities of each. Not once did he so much as hint that he should be included on the list under consideration. His conversation with Mitchell was impressive and objective.
When Judge Burger departed, Mitchell turned to me and asked, "What did you think of that?"
"I'm glad you think so. He's going to be the next chief justice."
Mitchell did not select Burger, but there was no doubt in his mind how he became chief justice. "Burger's the first guy to run for the job of Chief Justice and get it," Mitchell wryly observed to several aides. Nor is there any doubt, as recorded by Supreme Court historian Henry Abraham, that "Nixon's choice of Judge Burger was one of those rare examples of an indisputably bona fide personal choice by a chief executive [as] chief executive....By his own assertions, he considered his selection of Burger to be 'the most personal of [my] Presidency to date.'"
On May 21, 1969, Nixon staged a surprise announcement of his choice for chief justice. Warren Burger and his wife were secretly smuggled into the White House via the underground tunnel between the Treasury Department building beside the White House and the East Wing basement. Burger was easily confirmed by the U.S. Senate by a vote of 74 to 3 on June 9, after only three hours of mostly laudatory debate. To milk his selection for all it was worth, Nixon personally attended the swearing-in ceremony at the Supreme Court.
The First Failed Selection Clement Haynsworth
Nixon had managed to put the Court's stewardship into new conservative hands. Yet while a chief justice is first among equals, he has but one vote. The president still had an associate justice slot to fill. This nomination would prove far more difficult. Many Senate Democrats were still seething over Fortas's rough treatment, and itching for revenge.
Although the vacant Fortas seat, which had been held by Louis D. Brandeis (1916-39), Felix Frankfurter (1939-62), and Arthur Goldberg (1962-65) before Abe Fortas, was often considered to be the "Jewish seat," Nixon did not so view it. There were no clear political advantages for him to appoint a Jew, as his Jewish speechwriter William Safire advised him. Accordingly, Nixon instructed Mitchell to find a southerner who was a "strict constructionist." The reason he wanted a southerner was clear. After appointing Burger, as historian James Simon points out, "pressure had been building...to name a southerner to the Court. Though he had never publicly promised a southern nominee...Nixon's advisors believed that he could do southerners no higher favor than to appoint one of their own to the highest court in the land." Nixon understood the South, and that they held judges in great respect. He had gone to law school at Duke in North Carolina. To win in 1968, Nixon had turned to the South, and it had responded. As a result, the South had become an essential political base to his reelection in 1972.
Nixon's call for a strict constructionist had developed during his 1968 presidential campaign. He wanted a justice who believed the Supreme Court "should interpret the Constitution rather than amend it by judicial fiat." When selecting Burger, Nixon told the press that a good example of a strict constructionist jurist was former justice Felix Frankfurter. It was a savvy comment, since Frankfurter was held in high esteem, but it also showed the vague meaning of the term. Frankfurter had once explained that "The words of the Constitution are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading Life."
Rehnquist, as part of his duties as assistant attorney general, was in charge of vetting candidates for the Court by analyzing their rulings and philosophy. On May 29, Rehnquist completed his analysis of the rulings of one of two leading contenders for the Fortas vacancy: Clement F. Haynsworth, Jr., the federal judge from the United States Court of Appeals for the Fourth Circuit, who lived in Greenville, South Carolina. Judge Haynsworth had been on the federal appeals court since 1957 when appointed by President Eisenhower, and had served as chief judge (i.e., the most senior active judge) since 1964. He was a Democrat, and a fifth-generation southerner. To glean his judicial philosophy, Rehnquist reviewed twelve years of Judge Haynsworth's judicial decisions in a lengthy memorandum, which was forwarded by Mitchell to the White House. Rehnquist concluded that Haynsworth was a strict constructionist, but his own frank (if not alarming) explanation of that term bears notice:
A judge who is a "strict constructionist" in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs the latter two groups having been the principal beneficiaries of the Supreme Court's "broad constructionist" reading of the Constitution. The following conclusions about Judge Haynsworth's ideas of the law in these areas appear warranted:
(a) With regard to criminal law, he appears to be a "strict constructionist" quite ready to recognize the rights of society as well as those of the accused.
(b) With respect to civil rights, he appears to be more of a "strict constructionist" than the present Supreme Court, but not by any means a "die-hard."
In other words, for Rehnquist, a strict constructionist was anyone who likes prosecutors and dislikes criminal defendants, and favors civil rights defendants over plaintiffs. While simplistic, it is a very accurate description of what Nixon wanted.
The other contender for the Fortas seat was Lewis Powell, who was a partner in an influential Richmond, Virginia, law firm. Powell's philosophy was gleaned from his handling of Richmond's difficult school desegregation situation, where he had helped guide the Richmond schools to policies that fit the strictures of the Supreme Court's civil rights rulings. Powell's philosophy was also suggested by his membership on President Johnson's Commission on Law Enforcement and the Administration of Justice, which had made him an open critic of the Supreme Court's pro-criminal decisions like Miranda (requiring that criminals be advised of their rights). The only negative on Powell, as far as Mitchell and Nixon were concerned, was his age. At sixty-one, he was the same age as Burger, and Nixon had hoped to pair Burger with a younger man. But this became moot when Powell told John Mitchell that he no longer wished to be considered for the Supreme Court.
With Powell out, Mitchell recommended Haynsworth, who had picked up another strong supporter at the White House, special counsel to the president Harry Dent, a South Carolinian who had been working for Senator Strom Thurmond before coming to the White House. Dent was well connected with politicians throughout the South. Mitchell proceeded to complement Rehnquist's vetting of Judge Haynsworth's judicial philosophy by ordering an FBI background investigation. The only problem uncovered was an allegation by the Textile Workers' Union in 1963, accusing Judge Haynsworth of a conflict of interest when he handled a case where he held stock in a defendant's company. The charge had been resolved, however, by the chief judge of the Fourth Circuit, who had investigated and cleared Haynsworth. In addition, the matter had been referred to Attorney General Robert Kennedy, who had found nothing amiss.
However, neither the FBI, nor Rehnquist, nor anyone else in Mitchell's Justice Department did much real digging into the affairs of Judge Haynsworth. According to Curt Gentry, J. Edgar Hoover sought to please Nixon by undertaking only a perfunctory background investigation: "The [FBI's] investigation and clearance of Haynsworth took all of one day and consisted of two telephone calls: on July 1, 1969, Hoover called the SAC [Special Agent in Charge] in Columbia, South Carolina, who reported the judge was 'considered very conservative' and 'definitely in favor of law and order'; and a follow up call in which Hoover relayed this information to Attorney General Mitchell." This shallow investigation would prove to be no favor to either Mitchell or President Nixon. It made for problems that could have been avoided, which Judge Haynsworth himself raised when Nixon called him on August 16, 1969, to offer him the nomination. The judge expressed concern over the prior charge of conflict of interest. Nixon dismissed it, saying he would "kill that bird" during the confirmation.
But the problem was not so easily dismissed. Haynsworth was vulnerable to more than one charge of the "appearance of impropriety." Stephen Ambrose reports the ensuing events:
On August 18, [1969,] Nixon announced his choice. It was Judge Clement F. Haynsworth....This delighted the Democrats, North and South. The southerners were pleased to have one of their own named to the Court; the northerners anticipated with glee what they could do to this southern gentleman in the confirmation hearings. Haynsworth had a segregationist background, as did virtually every southerner of that time; he belonged to exclusive clubs; he was a wealthy man.
When the Senate went into session in September, Birch Bayh (D-IN) unleashed a barrage of charges against Haynsworth, centering on the allegation that he had adjudicated cases in which he had a financial interest. The Washington Post and the television news programs added innuendo and rumor of their own. Nixon complained, with some justification, that no rich man would ever be able to meet the standards demanded of Haynsworth. But by the end of September, [the White House] knew Haynsworth could not make it.
With Haynsworth's consent, Nixon refused to withdraw the nomination, and insisted that the Senate vote. They did, on November 21, after the White House used every bit of belated muscle it could muster. Nonetheless, the Senate rejected Haynsworth, the first rejection of a Supreme Court nomination since 1930, when the Senate refused to confirm Federal Appeals Judge John J. Parker (also of the Fourth Circuit and, as fate would have it, Haynsworth's mentor). Postmortem blame for the failed selection fell on John Mitchell, as Bob Haldeman recorded in his diary following the defeat:
[White House aide Dwight] Chapin brought the news in about 1:30. [The vote to reject Haynsworth was] 55-45. P not at all disturbed, because he expected it....P called Haynsworth, asked him to stay on bench, and says he will. In analyzing it, P concludes principal fault is Mitchell's. First for not having all the facts; second for coasting on assurances from [Senators] Eastland and Hollings instead of really working...and keeping [the White House congressional liaison people] out until too late....Then at the end [Mitchell] overplayed, with excess pressure on some, which backfired, was too heavy-handed. So we learned something and politically probably come out ahead.
The Democrats controlled the Senate in 1969 by a 58 to 42 margin. Haynsworth was rejected not because of his southern heritage, or his judicial philosophy; rather, he fell to residual hostility of the Democrats over Nixon's manipulation of the Court's seats. First there had been the filibuster that blocked Fortas's elevation to chief justice, and then his ouster. Nixon's advisers recognized this fact, as surely did the president.
The Second Failed Selection G. Harrold Carswell
Nixon's next choice to fill the Fortas seat has been viewed by many as the decision of a piqued president, an effort to spite the Senate with a poorly qualified nominee. Professor Henry Abraham wrote that the next appointment "was an act of vengeance one intended to teach the Senate a lesson and to downgrade the Court." In truth, Nixon's next nominee, G. Harrold Carswell, was a colossal mistake, a complete screw-up by Nixon's advisers. The Carswell nomination was the result of poor staffwork. Nixon did not pick Carswell because he was angry with the Senate. It was afterward that he would be truly angry.
John Mitchell relied on two people when he recommended Harrold Carswell: Warren Burger and William Rehnquist. It was Burger who had first brought Carswell to the attention of Mitchell. Years earlier, Burger had served as the assistant attorney general in charge of the civil division in the Eisenhower administration when Harrold Carswell was the U.S.
Attorney for the Northern District of Florida (1953-58). In 1958, Carswell became a Federal District Court judge in Northern Florida, where he served for almost twelve years (1958-69). At the time of his confirmation, he had been the youngest federal judge in the country at thirty-eight years of age. Burger's endorsement of Carswell resulted in his elevation to the United States Court of Appeals for the Fifth Circuit, where he was sitting when Haynsworth was rejected by the Senate. After only a few months on the Fifth Circuit, he was suddenly nominated for the Supreme Court. It was Rehnquist who vetted his decisions, and concluded that Carswell, like Haynsworth, was a strict constructionist and qualified to sit on the Court.
When Mitchell touted Carswell to the White House, he told Nixon that the fifty-year-old jurist was "too good to be true." On paper Mitchell found a law and order U.S. attorney for five years, a Federal District Court judge for almost twelve, and a new appointee to the Fifth Circuit a man who had been confirmed by the Senate on three occasions with no problem. He had been through three FBI background checks. Mitchell was not alone in endorsing Carswell. John Ehrlichman instructed his deputy Egil "Bud" Krogh to meet with Judge Carswell.
However attractive Mitchell's choice seemed on paper, Carswell proved to be a great disappointment. This deeply flawed man had failed to mention to those vetting him that other people might have good reason to believe he was a racist, even if he was not. If the Justice Department and FBI had been careless with Haynsworth, with Carswell they did even worse. "Our investigation of Carswell had been so superficial," the FBI's assistant director William Sullivan later explained, "that we never found out that he was a homosexual." While Richard Nixon was always looking for historical firsts, nominating a homosexual to the high court would not have been on his list. (This fact did not surface until many years later, when Carswell was arrested for propositioning a vice squad officer in the men's room of a Tallahassee shopping mall. Only then was it learned that "Carswell had been a known homosexual for years.")
Shortly before Carswell's confirmation hearings, the news media began to dig up additional information the FBI had missed. It was revealed that while serving as U.S. attorney, Carswell had arranged for the transfer of a public golf course, partially constructed with federal money, into a private club to avoid integrating the facility under the recent rulings of the U.S. Supreme Court. Similarly, he had later signed the incorporating papers for a "whites only" booster club for the Florida State University football team. Most damning was the discovery that when running for elective office, Carswell told an American Legion group: "I believe that segregation of the races is proper and the only practical and correct way of Life in our states. I yield to no man in the firm, vigorous belief in the principles of white supremacy." He added that "the so-called civil rights program [would] better be called the civil wrongs program." It is possible to understand how the FBI missed this information, since it was two decades old. But it is difficult to grasp how investigators missed information that a newsman discovered had occurred only two months before Carswell was nominated. When speaking to the Georgia Bar Association, Carswell opened with a story: "I was out in the Far East a little while ago, and I ran into a dark-skinned fella. I asked him if he was from Indo-China and he said, 'Naw, suh, I'se from outdo' Gawgee.'"
During the confirmation hearings before the Senate Judiciary Committee, the American Bar Association (which ranked Supreme Court nominees either qualified or unqualified) found Carswell qualified. Few others did. Blacks and civil rights groups were understandably offended by Carswell. Although he denied that he was a racist, as did his character witnesses, the picture was less than clear. Testimony showed that as a Federal District Court judge, Carswell had expressed his dislike of northern civil rights lawyers coming into Florida to litigate, and he was often insulting, rude, and hostile toward black lawyers appearing before him in his courtroom. Carswell's lack of legal acumen also quickly became apparent. He was less than a compelling witness in his own defense.
Shortly after his confirmation hearings ended, on March 6, 1970, the Ripon Society, an organization of moderate Republican college students, released a study undertaken by Columbia Law School students who had reviewed all of Carswell's published decisions as a Federal District Court judge. The findings were appalling. Carswell had been reversed by the Court of Appeals in a staggering 58 percent of his decisions, which appeared to be more than any other federal judge. It is not clear how Rehnquist missed this unpleasantly conspicuous problem.
Despite all this, at the urging of the Nixon administration, the Senate Judiciary Committee sent the nomination to the full Senate by a vote of 13 to 4. Democratic senator Birch Bayh of Indiana, who had led the opposition against Haynsworth, headed this fight as well. On March 16, 1970, debate opened on the Senate floor with Bayh declaring that Carswell's "incredibly undistinguished career as an attorney and jurist is itself an affront to the Supreme Court....I do not think that we can let our standards fall to the low level suggested by the present nominee." Senator Roman Hruska of Nebraska, the ranking Republican on the Senate Judiciary Committee, was Carswell's principal defender. His opening speech described the nominee as "well-qualified and well-suited for the Post...learned in the law...experienced...a man of integrity."
Following this ringing endorsement, Senator Hruska decided to talk with reporters outside the Senate Chamber. This interview continues to echo through history. With a tape recorder rolling, Hruska was asked by a radio reporter for his response to the charge that Carswell was mediocre. The senator pulled himself up, and in a deep, melodious voice, huffed, "Well, even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Frankfurters and Cardozos and stuff like that there."
On April 8, 1970, the Senate rejected the Carswell nomination by a vote of 51 to 45, with thirteen Republicans joining the Democrats. Although the White House staff thought they might be able to muscle Carswell through the Senate, once a few Republicans deserted, others followed. Haldeman recorded Nixon's reactions:
Carswell day, and he went down the tubes! Too bad. As the day started we had a pretty good chance. P's immediate reaction was to decide not to submit another nomination until after the elections, and then go for Bob Byrd of West Virginia. I urged an early start to the effect that if it was obvious this Senate would not approve a Southerner, then put in a good Northern constructionist. May do that. P did feel we had not done adequate job in our Congressional group, but that main fault was Justice. He called Carswell, good brief chat. No substance except urged him to stay on Court. He will.
The reference to appointing West Virginia's senator Robert Byrd tells much of Nixon's mood. This was his fantasy punishment for the Senate. Byrd was a part of the Senate's Democratic leadership, not because his colleagues loved him, but rather because they either feared or needed him. Byrd's seniority, his mastery of the parliamentary workings of the Senate, and his committee assignments gave him great power. He was a force to be reckoned with. If Nixon were to nominate Byrd, his colleagues would have a problem: they dare not vote against him, for if Byrd was not confirmed they would have to deal with his wrath; yet how could they vote for him when he was totally unqualified? Byrd had never completed his undergraduate education, although he had gone to American University's law school, where he had over many years completed his law work. Byrd had never passed a bar examination, never been admitted to practice anywhere, and never practiced a day of law in his Life. Nixon was particularly delighted by the fact that Byrd had once been a member of the Ku Klux Klan. Nominating Byrd to the Supreme Court was the equivalent of throwing a stink bomb into the Senate.
Senior White House aide Bryce Harlow, who headed the congressional relations staff, expressed his concern about Nixon's mood following
Carswell's defeat. "If you go across the way," he told another aide, referring to the president's Executive Office Building office where Nixon was brooding, "you will undoubtedly see a plume of blue smoke curling up from under the door. He is burning mad, determined to do something. What it is, I don't know, but it will be awful, just awful; and he will wind up doing severe damage to himself, as he usually does at such time." Harlow, who had known Nixon since his vice-presidential days, wanted the president to take a cruise on the presidential yacht, Sequoia, to cool down. Nixon did just that, with Haldeman and Mitchell, and Haldeman later reported a "very nice cruise to Mt. Vernon, and chopper back. Long talk about plans for next appointment."
While cruising the Potomac, Nixon calmed down, briefly, and decided to nominate a northern jurist another Burger recommendation: Harry Blackmun, who had already been checked out by Mitchell and Rehnquist. Nixon was the first president since Grover Cleveland to have the Senate reject two nominees to the Supreme Court in a row, so it was also decided that Nixon should make a public statement. To take maximum political advantage of the defeat, the president would portray the Democratically controlled Senate as anti-South. When he went to the White House Press Room, however, he was still angry. Haldeman described Nixon as acting like "a demon" before he went out to "really bang the Senate." Nixon stated for the cameras that he had concluded "that it is not possible to get confirmation for a judge on the Supreme Court of any man who believes in the strict construction of the Constitution, as I do, if he happens to come from the South." Therefore, he was asking the attorney general to submit the name of a northern jurist who was a strict constructionist. It was an obvious misreading of the Carswell defeat, and it only highlighted the extraordinary politicization of the appointment process under Nixon a process that involved Rehnquist as a key player.
The Blackmun Nomination
The next day, Nixon and Mitchell held a completely off-the-record meeting (which meant that while the White House staff was aware of the meeting, it was not on the president's public schedule and was unknown to the media) with Judge Harry Blackmun, the sixty-one-year-old Minnesota jurist. Before the meeting, Nixon had sought, and received, an assurance from Chief Justice Burger that Blackmun, Burger's friend since childhood and the best man at his wedding, was a strict constructionist. Face to face, Nixon liked Blackmun, and his record. Mitchell supported Blackmun because he had been endorsed by two of the attorney general's best friends: Herschel Friday, a bond lawyer from Little Rock, and Friday's former partner, Pat Mehaffy, now one of Blackmun's colleagues on the Eighth Circuit Court of Appeals.
On April 13, 1970, the White House announced Blackmun's nomination to the Supreme Court. He was quickly and easily confirmed by the Senate on May 12, by a unanimous vote of 94-0. Indeed, the weary Senate might have confirmed Blackmun even sooner, but Democrats were keeping an eye on a new Republican attack in the House of Representatives, where the House minority leader, Gerald Ford, was trying to impeach Associate Justice William O. Douglas.
Efforts to Remove William O. Douglas
Having successfully ousted Fortas for behavior that was not uncommon among the justices, Nixon's men were encouraged to try a repeat performance. No matter that Haynsworth and Carswell should have served as warnings. The president wanted more seats to fill. The next target was Justice William O. Douglas, a strong liberal appointed by Franklin Roosevelt. The Nixon administration had commenced investigating Justice Douglas immediately after taking office, when the "Internal Revenue Service began an audit of Douglas's tax returns only five days after the President's inauguration. At the same time, the FBI was compiling information on Douglas's connections with Las Vegas casino owner Albert Parvin. Douglas was a director of the Albert Parvin Foundation." How the Nixon administration might have initiated this action remains unclear. John Ehrlichman's memoir states that "From the beginning Nixon was interested in getting rid of William O. Douglas," reporting that "John Mitchell had begun to gather information about Douglas' nonjudicial sources of income, and some of it looked hopeful."80 As his autobiography explains, Jerry Ford became interested when he learned that "Douglas was collecting an annual retainer of $12,000 for serving as the only paid officer of something called the Albert Parvin Foundation. [Ford] also heard that he'd received $4,000 from the Center for the Study of Democratic Institutions."
When the Nixon administration had forced Fortas from the Court, its members had yet to find any more compromising information on Justice Douglas, but they had not abandoned hope. White House gumshoe Jack Caulfield, the former NYPD cop hired by Ehrlichman to undertake investigations for the president, was monitoring Douglas. On June 4, 1969, Caulfield reported in his idiosyncratic cop-talk that "it has been reliably determined from a confidential source" (most likely someone in the IRS) that "at least two newspapers" had task forces working on Douglas; that one newspaper had information from an IRS supervisor who had visited a Chicago bank with an "alleged custodial account for the Flamingo Hotel in Las Vegas"; and it was believed that the "subject account contains derogatory information or substantive leads showing a deeper impropriety on the part of Justice Douglas with the Parvin Foundation and/or Cosa Nostra figures." But Caulfield's information never developed.
Only with the passage of time has it been discovered the lengths to which the Nixon administration went to remove Douglas. It was the FBI that was doing the primary dirty work. Justice Douglas long suspected that the FBI was wiretapping him. He was right. As Gentry notes in his biography of Hoover, it was the director who "had supplied much of the 'evidence' used against [Douglas]. They were old enemies and had been since 1939, when Douglas had first joined the Court." Most remarkable was the wiretapping: "Douglas had been wiretapped, and by the FBI, in every administration from that of Harry Truman...to that of Richard Nixon, when, on June 25, 1970, Hoover sent H. R. Haldeman a report on a wiretapped conversation in which Douglas's tactics in the impeachment battle were discussed."
The Douglas impeachment drive was directed by the Republican minority leader, Gerald Ford encouraged by the Nixon White House. Ford would later claim that when Justice Douglas ignored the calls to resign from the Court by two members of the House of Representatives (H. R. Gross of Iowa and John R. Rarick of Louisiana), he decided to launch his own investigation. According to Ford's biographer, James Cannon (who had Ford's cooperation), the congressman assembled "a team of part-time investigators, but they came up with nothing to justify impeachment charges." Similarly, Ford was provided nothing from the Justice Department to justify removing Douglas.
Nonetheless, Ford launched his impeachment effort against Douglas on April 15, 1970. Cannon says that Ford "could never adequately explain in public or to his closest friends" why he went after Douglas, especially why he engaged in a smear campaign from the floor of the House, which was uncharacteristic of the future president. Ford charged Douglas with "fractious behavior as the first sign of senility" and argued that "his writings [appeared] in a pornographic magazine with a portfolio of obscene photographs on one side of it and a literary admonition to get a gun and start shooting at the first white face you see on the other." Ford finished his speech with, "He does not give a tinker's damn what we think of him and his behavior on the Bench"..."He is unfit and should be removed." Gerald Ford was joined by a number of Douglas foes: forty-nine Republicans and fifty-two conservative Democrats, but it was not nearly enough to impeach the justice. Though Ford may never have been able to explain his actions, they were quite understandable to members of the Nixon administration, who believed he was doing their bidding. They were assisting him (through the FBI), and monitoring the progress of his efforts. In fact, John Mitchell believed that Ford was acting at the direct request of the president.
Ford's plan was to get the House to create a "select" committee to investigate Douglas, rather than using the House Judiciary Committee, which had jurisdiction of impeachments but was controlled by Democrats. The effort failed. On April 21, the House Judiciary Committee created a special subcommittee chaired by the full committee's chairman Emanuel Celler to study the impeachment charges and report back. Chairman Celler stated that the subcommittee, with three Democrats and two Republicans, would "neither whitewash nor witch hunt." Executive departments and agencies from the FBI to the CIA to the Department of State provided information to Celler's subcommittee, which soon exonerated Justice Douglas, finding no basis whatsoever to impeach him. Republicans cried that the fix was in.
Efforts to remove Associate Justice William Douglas did accomplish one thing: they created an intractable resolve by Douglas never to resign while Nixon was president. Douglas summed up his feelings toward Richard Nixon in an anecdote in his memoir. Chief Justice Warren Burger had claimed that Nixon was opposed to the impeachment effort. Yet when Douglas mentioned this to Earl Warren, he "roared with laughter and said, 'If that son of a bitch is opposed to your impeachment he could stop it in one minute.'" Douglas decided "that Nixon, being an artist of dissimulation, would, if he planned to use a knife against a person, send him a message of cheer, friendship and good will." Douglas knew that Nixon had done exactly that with Abe Fortas; the day Fortas had resigned, Nixon called to express his sympathy.
After the Douglas impeachment effort ended, the president, John Mitchell, and John Ehrlichman met with Chief Justice Burger for a breakfast in the Family Dining Room on the main floor of the White House on December 18, 1970. The chief justice reported that the aging justices whose health most interested Richard Nixon Hugo Black, William Douglas, and Thurgood Marshall were not in the best of shape, but he added that none were incapacitated and all were functioning. Burger expected no retirements soon. For the time being, Nixon had to put his Court project on hold. It had been a constant focus since the 1968 election. It would return to center stage again soon. But for now it was banished to the wings.
The first two years of his administration had established Nixon's procedures for selecting justices. They involved five men, beginning with Nixon himself. Chief Justice Warren Burger passed names to Attorney General John Mitchell. Mitchell filtered them for strict constructionists, and added new ones of his own, with the help of William Rehnquist. John Ehrlichman kept a watchful eye on it all, calling on such White House staff as he needed. It was Rehnquist who actually did all the initial heavy lifting: he maintained the list of potential nominees; he determined whether or not a candidate was of Supreme Court quality; he performed initial litmus testing; and he made recommendations to Mitchell. If a candidate was seriously considered, Rehnquist met with him to test, vet, and size him up in person. Bill Rehnquist had become the personnel director for future justices. But he was much more.
John Mitchell had little Washington experience when he arrived. His practice as a Wall Street bond lawyer had been far removed from the business of the federal government and the Supreme Court. Therefore, he relied on experienced Washington people, like the deputy assistant attorney general, Henry Petersen, and FBI director J. Edgar Hoover, to assist him with projects such as ousting Fortas and Douglas. At the time that Mitchell was pursuing Fortas, I asked why he never consulted the one man in the Department of Justice most familiar with the Supreme Court, Erwin Griswold, who was the solicitor general (a Post he had occupied for President Lyndon Johnson as well, not to mention the fact that he was a former dean of Harvard Law School). I needed to know because I had periodic dealings with the solicitor general. "My God, we can't talk to Griswold about these things," Mitchell said, wincing with chagrin when I asked. Then he explained, "While Griswold's a good Republican he doesn't understand, nor always appreciate, Richard Nixon's politics." But Bill Rehnquist did. Today, I have little doubt that without Rehnquist's guidance and blessings, Mitchell's hardball and dubious tactics vis-à-vis the Court would never have been undertaken. Rehnquist's participation as a former Supreme Court insider who had clerked for Justice Robert H. Jackson gave us all solace. Yet these, and other, activities would later haunt me, after I had successfully slipped his name into serious consideration for a Court appointment (without his knowledge) during a critical point in the selection process when two new seats became available in late 1971.
Copyright © 2001 by John W. Dean
A Note to the Reader
From 1969 through 1971, the period of the events in this story, I served in the Nixon administration, first as associate deputy attorney general at the Justice Department, and then as counsel to the president at the White House. While I did so, Richard Nixon appointed four Supreme Court justices in two pairs, the first in 1969 and 1970, the second in 1971. I was involved in varying degrees in the process, especially the president's last selections: Lewis Powell and William Rehnquist.
The story of William Rehnquist's appointment has never been told. Indeed, hardly any Supreme Court appointments have ever been opened to public scrutiny. It is only thanks to Richard Nixon's taping system, the fruits of which are finally now being released to the public, that the full story of the Rehnquist selection can be revealed. Rehnquist's was a surprise appointment; at the time, he was a relatively young assistant attorney general, from the electorally modest state of Arizona.
I have some regrets about my role in this story. I have decided that the least I can do is tell it.
Copyright © 2001 by John W. Dean