Mr. Nixon Selects - The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court - Review

National Review, Nov 19, 2001 by Robert D. Novak

The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court, by John W. Dean (Free Press, 333 pp., $26)

'Who the hell is that clown?" President Richard M. Nixon asked an aide after a White House meeting on July 1, 1971. He was referring to an assistant attorney general wearing Hush Puppies and a pink shirt that clashed with a psychedelic tie. "Is he Jewish?" Nixon went on. "He looks it. That's a hell of a costume he's wearing, just like a clown." The president was told the man was William H. Rehnquist.

The name didn't stick. On July 24, Nixon referred to him as "Renchburg." On October 5, Sen. Barry Goldwater, in a telephone conversation with Nixon, brought up a "young fellow in the Justice Department. You know I can't think of his name. Oh, God, his name slips me." Then it came to him: "Ah, Bill Rensler." "Oh," responded Nixon, "I know Rensler well, an excellent man." At that moment, the president had no idea that 16 days later he would be naming "Renchburg" or "Rensler" to the U.S. Supreme Court.

John Dean brings this inside information to our attention in his new book, which benefits not just from secretly recorded White House tapes- recently released but largely overlooked-but also from Dean's own experience as Nixon's White House counsel. This inside look at chaos in deciding who should fill Supreme Court vacancies is a delight for political buffs; considerably less delightful is the counterpoint of Dean's 30-year-old mea culpa. Ever since turning against Nixon on Watergate in an unsuccessful effort to avoid jail time himself, Dean has been apologizing for being a fiercely ambitious (Blind Ambition was his first book) Republican yuppie.

His new confession is that as a 34-year-old presidential aide, he instigated the unlikely nomination of Bill Rehnquist. Dean does penance for Rehnquist's long tenure as chief justice and, implicitly, for George W. Bush's presidency. He laments "the thoughtlessness of my somewhat irresponsible adventure as a young White House staffman playing for a piece of history."

Dean maintains that scandal-tainted Justice Abe Fortas, forced off the bench in 1969, was the victim of conspiracy rather than his own greed, and also claims that Nixon concocted a plot to take control of the Supreme Court by forcing out liberal justices. Surely, however, it was no plot when, in September 1971, Nixon found himself with two high- court vacancies thanks to the simultaneous resignations of Justices Hugo Black and John Marshall Harlan; and The Rehnquist Choice records Nixon's confused course in making those selections.

"I just will not send a God damn liberal up to that court! Okay?" Nixon told attorney general John Mitchell. He moved no closer to addressing issues during five weeks of often circular discussion with his aides. Seemingly oblivious to the hidden tape recorders, Nixon engaged in what amounted to a rolling bull session as he talked about a wide selection of possible justices, including even Vice President Spiro T. Agnew. The president, who had lost Senate confirmation votes on two earlier high- court nominations, talked about new possibilities with little or no background information. Vaguely interested in picking a Catholic, Nixon at one point considered Lawrence Walsh (later the infamous Iran-Contra special counsel)-but only "if he is a Catholic. If he isn't a Catholic, forget it." Nobody responded, but Walsh happened to be a Presbyterian.

If Nixon was vague about Catholics, he was adamant about Jews. "On the Jew side," he said, the only person he would consider was the district attorney of Philadelphia (and later U.S. senator) Arlen Specter, because he was "strong on law enforcement." But later he appeared to forget Specter: "As long as I'm sitting in the chair, there's not going to be any Jew appointed to that court. [No Jew] can be right on the criminal-law issue."

After the Senate rejected his two previous southerners, Nixon was determined to go to the South for at least one more court nominee, to pin down Dixie in 1972 against a possible renewed independent candidacy by George Wallace. He decided quickly on Richard Poff, a relatively obscure Republican congressman from Virginia whose principal legal experience was as a longtime member of the House Judiciary Committee. But Poff's signature on the anti-integration Southern Manifesto, as well as his "no" vote on every civil-rights bill, guaranteed more than 30 senators would vote against him. Not relishing that prospect, Poff decided to pull out just as he was about to be nominated rather than subject his family to a bitter confirmation fight.

Nixon was beside himself, blaming Poff's opponents rather than Poff. "He's going to go for a real right-winger now," aide-confidant H. R. Haldeman opined in his diary, "someone worse than Poff, and really stick it [to the liberals]." Nixon's choice appeared to be Sen. Robert Byrd, who 30 years ago was not today's prestigious institutional memory of the Senate but, as described by Haldeman, "more reactionary than Wallace." Dean describes Nixon as "delighting in Byrd's non- qualifications" when the president mused: "Never practiced law, has only been a lawyer seven years and a member of the Ku Klux Klan probably." An incredulous John Mitchell asked: "You want to put his name in?" Nixon: "Put his name in, yeah."