The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined The Supreme Court. . - Clowns in Gowns: how Nixon's Rehnquist nomination screwed up the way we pick judges - book review

Washington Monthly, Dec, 2001 by David Greenberg

But Dean does not reprint Nixon's slurs as cheap shots. He embeds them in the context of important conversations to show how extensively the man dwelled on such concerns as race and religion. Nixon is heard voicing hope that Mildred Lillie will turn out to have "a little Italian blood"; howling, upon the mention of University of Chicago President Edward Levi, that he wasn't going to submit "a Jew's name"; and joking that William French Smith, yet another possible nominee, should convert to Catholicism. (After Mitchell promised to "get him baptized this afternoon," Nixon replied: "Well, baptized and castrated, no, they don't do that, I mean they circumcise--no, that's the Jews. Well anyway, however he is, get him changed.") Recently, some historians have asserted that the Oval Office tapes contain only random snippets and therefore cannot be used to piece together the nitty-gritty of presidential decision-making. To such claims, Dean delivers a knockout rejoinder.

Nixon's pettiness and bigotry are, of course, unattractive qualities. But one also has to admire his political skill. He was the first president to grasp that he could slip a conservative nominee past the liberal Senate only if he (or she) came with some sort of talisman of immunity that would make any nay vote look politically unwise. That magic charm might be the candidate's ethnicity or gender, as Nixon saw when he envisioned gaining feminist support for his choice of the conservative Lillie. Or it might be unassailable legal expertise, such as his consideration of Yale Law Professor Alexander Bickel, who, unlike the ill-fated Harold Carswell, could never be rebuffed as a mediocrity.

Ironically, then, in trying to checkmate the Democrats, Nixon ended up putting more weight, not less, on the ABA evaluations of his nominees that conservatives later grew to deplore (and that George W. Bush discontinued last spring). Nixon knew that conservatives had set a dangerous precedent in filibustering Abe Fortas's promotion in 1968; and after Haynsworth and Carswell, he feared the Democrats might retaliate in kind. "They'll always seize on what you've got as mediocrity and so forth and so on," he fumed to Mitchell. Getting ABA approval for his choices offered a way to counter such arguments. It was doubly ironic, then, when the ABA rejected Mildred Lillie as not qualified, depriving Nixon of the chance to name the first female Justice. Her scotched nomination cleared the way for Rehnquist, the dark horse, even though Nixon had recently adjudged his assistant attorney general to be a "clown." Rehnquist, alas, had gone to see the president wearing a pink shirt, psychedelic tie, Hush Puppies, and bushy mutton-chop sideburns.

No Holds Barred

Pulling back to examine the big picture of Supreme Court nomination battles over the last three decades, two clear and important trends emerge. First, the fetishization of legal expertise, to which Nixon contributed, has limited the Court. It has made Presidents leery of picking dynamic, larger-than-life figures with real-world backgrounds--people like John Marshall, Hugo Black, or Earl Warren--who in the past brought a sense of grandeur and purpose to the Court.