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

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."

Actually, Nixon was not serious about Byrd (though poor Byrd appeared to be), and was interested only in enraging such liberals as columnist Mary McGrory. The president soon decided on an equally unlikely southern choice: Herschel Friday, a Democratic bond lawyer from Little Rock, Ark., who was pushed by fellow bond lawyer Mitchell and, Dean now reveals, Chief Justice Warren Burger. Although Nixon was not in the practice of actually vetting his possible court nominees, Dean was sent to Little Rock to interview Friday. Dean returned to the White House reporting that the prospective justice was "a blank sheet of paper" with no opinions on the issues of the day. "God damn him," Nixon responded. "We're not going to have this. And I'm not going to put a sleeper on the court."

Meanwhile, for the other vacancy, Nixon improbably was searching for a woman. "I'm not for women, frankly, in any job," he said in his tape- recorded ramblings. "I don't want any of them around." But his wife Pat was pressuring him to name a woman and Nixon ruefully conceded that "it isn't a man's world anymore" and that a woman justice could "pick up . . . a half-percentage point" in what he feared would be a close 1972 election. The woman justice would have to be "hard-line as hell," said Nixon. The nominee he wanted was somebody who ordinarily would not have been considered for the nation's highest court: Mildred Lillie, a conservative Democratic state appeals judge in California. "A conservative woman from California," exulted Nixon. "God. That will kill them."

The White House submitted the names of Friday and Lillie to the American Bar Association, whose judicial review committee rejected both as unqualified. That took Nixon off the hook-with Burger for Friday, and with his wife for Lillie. But it was now October 19, and after six weeks of indecision, his promised announcement date was two days away. He quickly turned to Lewis Powell, the distinguished Richmond lawyer who at age 64 previously had been considered too old. For the other vacancy, aides pitched a surprise: Howard Baker, a 45-year-old first- term senator from Tennessee. Nixon immediately agreed, without much enthusiasm. "He isn't the greatest stand-up guy," said Nixon, "but he's young." Howard Baker was stunned when Mitchell gave him the news, and characteristically asked time to think it over. "Apparently," Dean writes, "he was frantically considering his finances, or searching his soul or both." Nixon grumbled that "he just can't screw around forever."

Dean had been quietly pressing the 47-year-old Rehnquist as a possible nominee. Indicating his own standard for a justice, Mitchell said Rehnquist offered "no political positive for the president." Nixon asked: "How the hell could you put just a guy who's an assistant attorney general on the court?" Rehnquist himself listed his disqualifications: "I'm not from the South, I'm not a woman, and I'm not mediocre." But Dean enlisted a brilliant advocate for Rehnquist in White House lawyer Richard Moore, who two years later would contradict Dean's testimony before the Senate Watergate Committee. Moore, a 57- year-old white-haired lawyer who often described himself as a father figure in Nixon's young White House, could get Nixon's ear, as Dean could not. He convinced the president when he described Rehnquist as a law clerk to the eminent justice Robert Jackson who had graduated first in his class at Stanford Law School. "It clicked," Dean concludes.

"While Baker dithered," Dean writes, "the opportunity of a lifetime was slipping little by little from reach." When the young senator finally called Mitchell to accept, it was too late. Nixon wanted Rehnquist. Mitchell was ordered to "turn Baker off." Dean is neither a journalist nor a historian and so does not record Baker's reaction to this extraordinary turnabout.

Rehnquist was never vetted, and Nixon never seriously discussed his judicial philosophy with him (or with Powell or any other court candidate). "Just be as mean and rough as they said you were," the president told the future chief justice-after he was confirmed by the Senate-in their only private conversation.

In a mean-spirited "afterword," Dean revisits-and endorses-the attacks levied against Rehnquist in his Senate confirmation process. Nevertheless, Dean has performed a valuable service in recording Nixon's tortuous course to a decision. The present John Dean would not agree, but it is providential that this chaotic process produced, in William Rehnquist, the closest Richard Nixon ever came to putting a strict-constructionist judge on the Supreme Court.

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