----
TELLING THE STORY OF JUSTICE REHNQUIST'S NOMINATION:
A Review Of John Dean's The Rehnquist Choice

By EDWARD LAZARUS
----
Friday, Nov. 02, 2001

The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court (Free Press 2001).

On October 4, 1971, John Dean, counsel to President Richard Nixon, decided almost as a lark to float a name to be considered for one of two open seats on the U.S. Supreme Court. "The president has a perfect candidate right under his nose," Dean told a fellow White House staffer. His name: William Hubbs Rehnquist.

So began Rehnquist's improbable rise from relative obscurity as Assistant Attorney General for the Office of Legal Counsel to become Nixon's fourth appointee to the High Court. Now, thirty years later and fifteen years into Rehnquist's tenure as Chief Justice, a rather rueful John Dean looks back at the events that led to Rehnquist's selection; sheds new light on the background and character of the nation's highest-ranking jurist; and provokes, inevitably, a host of tantalizing historical "what ifs."

For the last twenty-five years, a host of books, using the notorious and voluminous Nixon tapes, have provided fascinating and important insight into the workings of the Nixon White House and the history made there. Dean's compelling narrative, The Rehnquist Choice, is a major contribution to this historical record that provides the bonus of substantial contemporary relevance.

Nixon's Bid to Remake the Supreme Court

As Dean effectively portrays, no President in modern times was more determined than Nixon to revamp the Supreme Court in his own political image. A combination of political scheming and fate gave him ample opportunity.

After succeeding in that strategy, the Nixon Justice Department launched an investigation of Fortas' finances that ultimately led to Fortas' resignation from the Court. As a result, Nixon garnered two appointments almost immediately —first the Chief Justiceship and then Fortas' seat. In 1971, two more appointments followed when Justices Hugo Black and John Marshall Harlan, both gravely ill, submitted their resignations.

Using extensive excepts of taped conversations between Nixon and his top aides, Dean does a masterful job reconstructing Nixon's approach to reshaping a Supreme Court that, in the President's view, was altogether too liberal on the key legal issues of the time: civil rights and criminal procedure.

On the issue of civil rights, Nixon allowed that "I don't want a man on the Court that's a racist . . . . We've crossed that God damn bridge." But Nixon also ruled out anyone who might prove "soft" on civil rights and demanded, specifically, candidates who would put an end to busing (or "forced integration" as he called it). Perhaps even more important, in keeping with a central theme of his election campaign, Nixon wanted "law and order" appointees who would reverse the Warren Court's coddling of criminal defendants.

Only "Strict Constructionists" Need Apply

By Dean's account, inside the Nixon White House there wasn't a lot of talk about competing methods of constitutional interpretation as a measure for evaluating judicial candidates. Nixon's concerns went straight to the bottom line political results he wanted a reconfigured Court to reach.

That result-oriented approach was slavishly followed by most of the Administration underlings charged with vetting potential nominees — especially the head of Office of Legal Counsel, William Rehnquist. For example, in a stunningly candid memo Dean has dug up, Rehnquist all but concedes that "strict constructionism" — the purported judicial philosophy to which conservative adhered — was little more than a mask for a preferred set of outcomes. Thus, as Rehnquist assured Attorney General John Mitchell, "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."

As is well-known, Nixon's search for justices who would execute his political game plan got off to a rocky start. To replace Earl Warren, he selected Warren Burger, a federal appellate judge who fit the law and order profile, but proved ineffectual as Chief. Next, Nixon's first two choices to replace Fortas failed in the Senate and Nixon ended up with Harry Blackmun, who, of course, emerged as one of the Court's leading liberal voices.

The Candidates Who Might Have Been Justices

This history serves as backstory for Dean's narrative, which focuses on Nixon's much less well known search for replacements for Black and Harlan. Through Dean's eyes, aided by verbatim transcripts, the reader is treated to a blow-by-blow of how Nixon and his aides explored option after option in search of just the right combination of politics, age, geography, and confirmability.

One leading candidate, Richard Poff, a conservative Southerner sure to face a confirmation fight, withdrew from consideration to protect his son from learning he was adopted only to have the muckraker Jack Anderson publish the story anyway.

Chief Justice Burger repeatedly tried to insinuate his views into the process and was especially adamant that Nixon not appoint a woman.

Howard Baker, the Tennessee Senator who (as a member of the Watergate Committee) later would be instrumental in Nixon's downfall, was offered a seat on the Court, but lost his chance when he temporized — apparently because of financial concerns — before accepting.

Rehnquist and His Character: Did He Lie?

After half a dozen candidates succumbed to one objection or another, Rehnquist emerges for the most ironic of reasons: He might actually be qualified.

Like a number of other possibilities, this rock solid Goldwater Republican met all the political tests. But, in contrast, Rehnquist was really smart — first in his class at Stanford Law School and a former law clerk to Justice Robert Jackson. Nixon liked that a lot.

So it was that John Dean's fanciful idea led to Rehnquist being paired with Lewis Powell, the consummate Southern gentleman conservative, to fill the seats once held by Black and Harlan.

In one of the book's few shortcomings, Dean does not tell us much about what we should make of the odyssey leading to Rehnquist's selection. Nor does he fully assess what difference it might have made for the country had the relatively moderate Baker quickly accepted Nixon's offer, thereby foreclosing Rehnquist's appointment.

But Dean does address at length another issue of considerable importance, namely, Rehnquist's character and, specifically, the question of whether Rehnquist lied in his confirmation hearings. Weighing the evidence carefully, Dean draws the unequivocal conclusion that Rehnquist, like the man who appointed him, lied repeatedly (perhaps, in Rehnquist's case, even under oath).

Dean's indictment of the Chief Justice focuses on his confirmation testimony about a memo that Rehnquist had written while a law clerk to Justice Jackson during the Court's consideration of Brown v. Board of Education.

In the memo, entitled "A Random Thought on the Segregation Cases," Rehnquist wrote, in part: "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson [establishing the doctrine of "separate but equal"] was right and should be affirmed."

For obvious reasons, this memo's opposition to the result reached in Brown presented Rehnquist with a confirmation problem. But he came up with a fairly ingenious solution. Rehnquist claimed that the memo did not embody his own views. Instead, Rehnquist claimed to have prepared the memo at Jackson's request "as a rough draft of a statement of his [Jackson's] views."

As Dean parses with great care, this explanation does not hold water. The Rehnquist memo's reference to having "been excoriated by 'liberal' colleagues" makes no sense in the context of a statement of Jackson's views to be delivered to his colleagues. On the other hand, it makes perfect sense in the context of an expression of Rehnquist's views — as Rehnquist, by his own admission, saw himself as a lonely conservative clerk isolated in a sea of liberals.

(Indeed, though Dean does not mention it, Rehnquist made a similar complaint about liberal colleagues in a bench memo in another race discrimination case, Terry v. Adams. There, Rehnquist wrote —clearly in his own voice — "It is about time the Court faced the fact that the white people [in] the South don't like colored people.")

In light of Dean's analysis of Rehnquist's veracity, one is led in "The Rehnquist Choice" to a devastating conclusion. In the end, Rehnquist embodies Nixon's legacy in at least two respects. Strict constructionist as he himself defined it, Rehnquist alone among Nixon's four appointees stayed true to Nixon's politically conservative hopes for the Court. And, like the man who appointed him, Rehnquist's conduct has tragically advanced the steady erosion of the integrity of our institutions of government.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books — most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

Ads by FindLaw