The wrong man for the job

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

Published October 2, 2001 8:09PM (EDT)

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.

At the time that Shogan interviewed Mitchell and Rehnquist, he had no reason to be suspicious of their activities. Those interviews were in 1971, long before Watergate. The book explains why the legal advice given Mitchell was dubious. In fact, the entire drill was designed to force Fortas out of his life-tenured post on the Supreme Court and to create a vacancy. Fortas was forced off the Court, under a threat from Mitchell of a criminal action, for doing what many justices and judges at the time did, which was receiving payment for sitting on the board of a foundation. It was not an illegal activity. Fortas had done nothing illegal, rather he was bluffed off the court by Mitchell. And Mitchell would never have done it without Rehnquist's giving him legal cover. In looking through my Rehnquist files at the National Archives, I could not find one instance in which Rehnquist advised the Nixon White House that they could not do something, particularly in the area of law enforcement.

For a strict constructionist like Rehnquist to claim that the attorney general can undertake a criminal investigation of a sitting Supreme Court justice, with no hard evidence, only speculation, of criminality is remarkable. The Constitution says the remedy for dealing with wrongdoing by a justice is impeachment, then prosecution. Impeachment is a congressional activity. It is not the business of the Department of Justice. Based on what Rehnquist told Shogan at the time, the legal authority he gave Mitchell was so thin, in my mind, as to be nonexistent.

Was Nixon really serious about appointing a woman to the Supreme Court?

He really was. As readers will discover, Nixon said a lot of terrible things about women, about how they shouldn't be educated, that he's glad he has none in his Cabinet, and similar statements. Nonetheless, he believed that there would be a political plus for him to be the first president to appoint a woman to the highest court. However, I don't believe this idea originated with Nixon.

First lady Pat Nixon was seriously lobbying for a woman. In fact, he did not tell his wife until after he made his announcements that he was not going to appoint a woman. The word around the White House was that he caught hell from Mrs. Nixon for failing to select a woman.

Who was Nixon considering to be the first woman justice?

Attorney General John Mitchell had two candidates. But the White House actually looked at a number of women. I have reported them all in the book, and I am sure most of these women had no idea they were being considered for the Supreme Court.

The two names that Mitchell recommended to the president were District of Columbia Judge Sylvia Bacon, who was in her early 40s, and a justice on the California Court of Appeals, Mildred Lillie, who was about 50 at the time. The president felt Judge Bacon was too young and wanted to go with Mildred Lillie.

I was sent out to California to vet Justice Lillie, after she became the leading candidate. I thought she was terrific. And to this day, I believe she would have been a great selection.

Why wasn't Justice Lillie selected?

The short answer is she was blocked by a group of men, lawyers who did not think she was qualified to be on the Supreme Court. While they said she was the most qualified woman in the country to be on the Court, she was not qualified enough. In effect, they were saying no woman was qualified.

Justice Lillie was blocked by 11 of the 12 members of the American Bar Association's Standing Committee on the Federal Judiciary. All 12 were men. But one thought she was fully qualified. The president, mistakenly I believe, had agreed to get advance approval from this ABA committee before nominating anyone.

He had made several prior nominations to the Supreme Court, but had ignored the ABA. The ABA kept on Attorney General Mitchell until he got the president to agree to use the ABA. But when the ABA started vetoing every name Nixon sent them, or threatened to veto, and leaked the names of candidates to the media, the president and attorney general stopped using them. But not soon enough for Mildred Lillie.

When President Reagan nominated Sandra Day O'Connor to be the first female associate justice, I compared the credentials of each woman. I believe that Mildred Lillie was equally, if not more, qualified to be on the Supreme Court than Sandra Day O'Connor. Justice Lillie had more judicial experience, and was equally as articulate and intelligent. Incidentally, President Reagan did not seek prior approval of the ABA. And times had changed. It was a decade later.

Justice Mildred Lillie is one of those women who was ahead of her time and who made it possible for other women who have followed her to not be confronted with the problems she was confronted with. If she had been nominated and confirmed, she would still be on the United States Supreme Court. She is still a justice on the California Court of Appeals in Los Angeles.

Have you spoken with Justice Lillie since you vetted her in 1971?

Yes. We talked for the first time, after all these years, a few days ago. I called her to get her address to send her a copy of the book. While she assured me that getting old is not for sissies, she was as sharp and witty as I remembered her. She told me a cute story. She said that before I vetted her in California she had come back to Washington to meet with Attorney General Mitchell. When she and her husband arrived at the Department of Justice, the attorney general had sent a nice young man to greet them, who carried her suitcase up to Mitchell's office, got them lunch and helped her fill in some of the questionnaires. That young man was none other than William Rehnquist. She liked the fact that the chief justice of the United States had once been her baggage handler. She invited me to lunch, and I look forward to visiting with her.

William Rehnquist, apparently, was no one's first choice?

That is correct. I did not think of Bill Rehnquist until my first choice withdrew. My candidate was a Virginia congressman, Richard Poff. I had worked with Poff when I was the minority counsel of the House Judiciary Committee, and later as an associate director of a law reform commission. Poff was a member of both the Judiciary Committee and the Commission. He was and is a fine lawyer.

What happened to Poff?

The Poff situation is Act 1 of my story. Poff withdrew for personal reasons. It is really a rather moving story. I don't want to spoil it for readers. But here was a man who had worked hard for 20 years in Congress. His dream was to be a Supreme Court justice, a position he would have preferred to being president of the United States. Just at the time his dream is within his grasp, he determined that if he pursued his ambition it could hurt his family. So he withdrew for family reasons. But the story has an ironic ending. I will say no more than that Dick Poff later did become a justice on the Supreme Court of Virginia, where he sits today as a senior justice.

The behind-the-scenes aspects of the selection process for Supreme Court justices is generally pretty mysterious. What was involved in assembling such an extensive account of it?

I was involved -- in varying degrees -- in all of Nixon's Supreme Court selections, particularly the last two when I was White House counsel. So I had personal knowledge of the story. But I did not know what happened in those meetings behind closed doors with the president. Now I do.

Last fall, the White House tapes were made available that deal with Nixon's last two high court appointments, Lewis Powell and William Rehnquist. It was a remarkable 34 days. It was a typical Nixonian roller coaster experience. A process that looked routine from the outside was anything but. Most remarkable is the fact that it was all recorded on tapes.

What was not recorded, I was able to fill in from my own knowledge and other White House documents. While many of those files are available at the National Archives, some key files remain sealed to protect the privacy of living persons. The sealed files are my files, and I had copies. I felt I could tell the story, and rely on those files, without invading anyone's privacy.

But since no president is likely to record himself in the future, I doubt we ever will have such a record again. This is a unique look into a process that has not changed in over 200 years. But other than insiders, no one knew how it worked. From what I have learned, the Nixon White House was not much different in selecting justices than those that proceeded and followed.

So how did William Rehnquist get chosen?

Nixon wanted to select a Southerner and a conservative. He wanted his candidate as young as possible, so they would remain on the Court for years, and influence our history. Nobody thought of Rehnquist, who was relatively young, 47 years of age, and a middle-level government lawyer, because he was running the radar system to find potential Supreme Court justices. Attorney General Mitchell had a master list of potential candidates. Rehnquist was the keeper of the list. He was the man who did the preliminary screening, who determined if the candidate was a strict constructionists.

What is a strict constructionist? President Bush used it during the last campaign, saying he would appoint strict constructionists to the Supreme Court.

Well, it generally refers to how a judge or lawyer interprets a statute or a constitution. But in 1968, candidate Nixon gave it a political meaning. Nixon said he would only appoint strict constructionists to the Supreme Court. Nixon liked to refer to former Justice Felix Frankfurter as a good example of a strict constructionist.

In theory, it means that the judge does not inject his own philosophy into interpreting the statute or constitutional provision. But as most judges, if they are candid, will tell you, this is impossible. It is a myth to believe judges can keep their personal philosophy out of their decision making. In fact, Justice Frankfurter once wrote: "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 the meaning not from reading the Constitution but from reading life."

While still at the Department of Justice, Rehnquist provided the best definition of a strict constructionist I have ever encountered. It was in a memo Rehnquist wrote while he was vetting Judge Clement Haynsworth, one of Nixon's selections who was rejected by the Senate. Rehnquist wrote, in brief, that a strict constructionist was anyone who likes prosecutors and dislikes criminal defendants and who favors civil rights defendants over civil rights plaintiffs. That is as candid and blunt as you can get. And that is the real definition of a strict constructionist.

You were explaining how Rehnquist was selected by Nixon.

It could best be described as an accident. It was a last-ditch decision, only hours before the president felt he had to announce his two choices. Nixon stumbled into considering Rehnquist.

First Nixon decided he wanted Lewis Powell, who was an eminent lawyer, a former president of the American Bar Association and a Southerner. But Powell, who had a problem with his eyesight, had to be convinced. I think Nixon did a great job in convincing Powell to take a seat on the court. The conversation is Nixon at his best.

Nixon's second choice was Sen. Howard Baker, who today is President Bush's ambassador to Japan. Howard Baker was offered the position on the Supreme Court, but he dithered. He could not be reached by Mitchell to find out what he wanted to do. While Howard Baker dithered, another White House staff man, Dick Moore, who I had convinced that Rehnquist should be appointed, mentioned it to Nixon. On previous occasions when Rehnquists name had been mentioned, the president was not interested. But this time, when he was not sure if he had two candidates, Powell and Baker, he reconsidered.

At the last minute, Baker said he wanted the appointment. But Nixon had been thinking about Rehnquist, who was No. 1 in his class at Stanford, and a law clerk to Justice Robert Jackson. As you know, Rehnquist got the nod. I will not spoil the story for readers, however, because it gets very intriguing at the end. It's interesting to see how Nixon made his decision during a telephone conversation with Mitchell.

You write that there were serious consequences resulting from the way Nixon selected Rehnquist.

Very serious. Unfortunately, William Rehnquist was never vetted. This caused problems that otherwise might not have arisen.

What exactly do you mean by "vetting"?

The standard practice in Washington is to check the background of all presidential appointees, particularly those who are nominated for high positions requiring Senate confirmation. Before a name is sent to the Senate, the White House staff wants to be sure that nominating that person will not embarrass the president or the nominee. This is particularly true with Supreme Court nominations because they are few and far between, and each of the nine justices has a tremendous potential influence on the law of the land, so nominees are usually carefully vetted.

Why didn't you vet Rehnquist?

Nixon decided to cut his staff out. It was very unusual. Everyone except Mitchell and Dick Moore. I had a last-minute call from Bob Haldeman, Nixon's White House chief of staff, on the day Nixon was scheduled to announce his nominees. I had been out of the loop for days. Haldeman told me that the president did not want anyone, including Haldeman himself, or me, to know what he was doing. Haldeman told me that Dick Moore thought he knew, because Haldeman knew everything. So Moore spilled the beans, as Haldeman described it. Haldeman was worried that neither Rehnquist or Lewis Powell had been vetted. So he was, without the president's knowledge, making sure there were no slip-ups. Haldeman told me about Rehnquist. I was stunned.

Why stunned?

Because I had been really screwing around pushing Rehnquist's name. With Poff, who I knew and who I believed would make a great justice, I knew what I was doing. With Rehnquist, all I knew was that he was exactly what the president was looking for, but no one seemed to recognize this fact. First I sold Dick Moore, and then I pitched John Ehrlichman, who was Nixon's top domestic advisor and my predecessor as White House counsel, and John Mitchell. Ehrlichman and Mitchell told me Nixon would never select Rehnquist because there was no political advantage for him to do so.

I was stunned because the game I had played actually worked. At the time, I was a young staff man. I'd just turned 34. I was trying to get a piece of history by pushing Rehnquist. Looking for brownie points with my superiors. It was a game. But suddenly it was very serious.

So what did you do?

Well, I thought about confessing to Haldeman, explaining what I'd been up to. I knew little about Rehnquist's background. But my files were filled with memos that I suspected would cause Rehnquist trouble if they were known to the Democratic controlled Senate. I suspected other Justice Department files could create problems for him as well. Rehnquist is more than conservative; he is almost radical. Still, I was sure the president and attorney general would not let the Senate have such material. And, indeed, they did claim all Rehnquist files were subject to attorney-client, if not executive, privilege.

What I did was tell Haldeman potential problem areas -- like Rehnquist's involvement in ousting Justice Fortas. But unless the Senate got documents, that would not be a problem. They didn't.

How did you feel when the president announced Rehnquist's nomination?

Like I had played a very dangerous game. I was not at all sure that I wanted Bill Rehnquist setting legal policy for the next three decades. Actually, I started dragging the bushes over my tracks. I did not want credit for planting the seed, and kept my mouth shut. However, as the taped conversation between Dick Moore and the president makes clear, Moore told the president where he had gotten the idea of Rehnquist.

Newsweek magazine, you report, did find a document that caused Rehnquist problems. They reported that as a law clerk to Justice Jackson, back in 1952, Rehnquist had written a memo that indicated that he supported the old Jim Crow type laws of "separate but equal" for African-Americans, and the memo suggested Rehnquist was opposed to the landmark school desegregation case, Brown vs. Board of Education.

The Jackson Memo, as the memo Rehnquist wrote in 1952 has come to be called, did cause Rehnquist problems. It caused problems in 1971 when he was nominated to be an associate justice, and again in 1986 when President Reagan nominated him to be chief justice. It will continue to cause him problems -- not because of the content of the memo, but rather because of his explanation of it. There is no doubt in my mind, nor in the mind of many, that Rehnquist lied about the Jackson Memo. This is a classic example of the consequences of failing to vet a nominee.

Rehnquist's nomination was in no trouble whatsoever before the Jackson Memo surfaced. That is exactly the kind of thing that you look for in the vetting process. It was sitting in the Library of Congress in Justice Jackson's papers. It would not have been difficult to find or to have discussed with Rehnquist.

When the Jackson Memo first surfaced and caused a buzz in the Senate, I talked with Attorney General John Mitchell about it. He told me that Rehnquist had no memory of the document. Yet a few days later, Rehnquist's opponents were making the case that they thought Rehnquist still believed in the separate but equal doctrine and was against Brown vs. Board of Education. So Rehnquist sent a letter to the Senate.

He claimed that the views in the memo did not reflect his own. Rather he had written the memo for Justice Jackson to reflect Jackson's thoughts on upholding the then-existing separate but equal law; in short, it argued for a rejection of the Brown vs. Board of Education ruling. This explanation did not fit with the words of the memo to Jackson, nor with anything Justice Jackson had believed. In fact, Justice Jackson voted for Brown vs. Board of Education, with the entire Court, getting out of a hospital bed to show the world the Supreme Court was unanimous in its landmark holding that ended school segregation in America.

While many doubted Rehnquist's explanation, his supporters were able to prevent a reopening of his hearings, and he was confirmed. However, this issue came back with a vengeance in 1986, when he was nominated to be Chief Justice. This time the issue was not whether Rehnquist had once believed in separate but equal facilities, and segregation, for blacks and whites, but rather whether he had been truthful with the Senate.

When researching this book, I was stunned to review the record. The evidence is clear and convincing that Rehnquist lied in 1971, and he lied under oath in 1986 to protect that earlier lie. I also discovered that this conclusion was reached by a number of lawyers in the Senate, as well as many academics who have studied the testimony and evidence since. This was one of several very unfortunate situations that resulted from the failure to vet Rehnquist when he was first selected.

It appears from your book that you have some regrets about your role in this matter. Is that correct?

I do have regrets. And I felt the least I could do is tell the story. I've only touched on a few highlights for you. One day very soon President Bush is going to have one or more seats to fill on the court, including Rehnquist's. Everyone needs to understand the selection process better. This, I believe, will help.

What exactly is it that you regret?

That I was responsible for the selection of a justice who has a philosophy that is hostile to the rights of blacks, the poor, minorities and women. At the very end of the book I quote from a conversation that Rehnquist had with Nixon after he had been confirmed, on Dec. 10, 1971. It was the only private conversation they had while Nixon was president. Nixon told Rehnquist to "be just as mean and rough as they said you were." Rehnquist thanked the president, and took that request to heart.

By Laura Miller

Laura Miller is the author of "The Magician's Book: A Skeptic's Adventures in Narnia."

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