The wrong man for the job

John Dean talks about Richard Nixon's backroom maneuverings in the appointment of Chief Justice Rehnquist.

By Laura Miller

Oct. 2, 2001 | William Rehnquist has been chief justice of the U.S. Supreme Court since 1986 -- a period during which the court became increasingly conservative -- and most recently presided over the impeachment of President Clinton and wrote the majority opinion in Bush vs. Gore. Considering how much he has influenced the nation's history, it's fascinating and somewhat dismaying to learn from John W. Dean's "The Rehnquist Choice" that President Richard Nixon's decision to nominate him for appointment as an associate justice in 1971 was a rushed and somewhat haphazard affair. Dean's is a detailed and fascinating behind-the-scenes account of the process from the perspective of an intermittent insider. It also offers some disturbing evidence of activities that might possibly have scuttled Rehnquist's appointment if it had been presented to the Senate at the time. Those activities include Rehnquist's involvement with Nixon's scheme to force the resignations of liberal Supreme Court justices in order to make room for his own appointees (a plot that succeeded in the case of Abe Fortas). Later revelations concern Rehnquist's early support for continued school segregation and especially his attempts to deny that support. Salon interviewed Dean at his home in Southern California via e-mail.

During the time that the Rehnquist appointment was unfolding, you were counsel to the president, right?

Correct. But part of my knowledge comes from the fact that before going to the White House I served in the Department of Justice, as an associate deputy attorney general. That is a post that is just high enough in the hierarchy to have a good understanding of much of what is going on.

In your introduction, you explain how Nixon tried to "unpack" the Supreme Court. Has this fact ever been reported before?

Not to my knowledge. It is one of his abuses of power that has been overlooked -- until now.

Surprisingly, no one has previously connected the dots. While we know that the Senate had its first and only filibuster in 1968 to block the Supreme Court nomination of Justice Abe Fortas to become chief justice, we didn't know that Nixons hidden hand was behind this undertaking. People also knew that Fortas was forced to resign, but few were aware of Nixon's role it that. It is also known that Jerry Ford, as minority leader of the House, tried to impeach Justice William O. Douglas. But again, Nixon's role in that was not known. And no one had a clue that William Rehnquist was involved in these matters.

What was Rehnquist's role in unpacking the Court?

He gave it legitimacy. Rehnquist, as a middle-level Department of Justice attorney and constitutional scholar, was giving Nixon's attorney general, John Mitchell, legal advice. If Rehnquist was not aware of Nixon's efforts to unpack the court -- something that was clear to me as a middle-level Nixon appointee at the Justice Department, just one notch below Rehnquist -- he is not half as smart as I believe him to be. Remarkably, he went along with it.

Are you saying that Rehnquist was giving bad advice, that his activities were improper?

Let me put it kindly: It was at best very dubious legal advice. As I explain in the book, the Justice Department papers that relate to this subject have not made their way to the National Archives yet. Other Justice Department papers from the same period are in the archives. However, I was able to locate evidence of Rehnquist activities. He gave a contemporaneous interview to journalist Robert Shogan, who reported it in a book about Fortas' forced resignation from the high court.

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