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Nixon dropped California appeals court justice Mildred L. Lillie from consideration after the American Bar Association claimed no woman was qualified to sit on the Supreme Court. photo: Mike Nelson

Nixon had been getting pressure to nominate a woman to the Court. Though Nixon privately was reluctant to appoint a woman to the bench, he seriously considered Mildred Lillie, a judge in California. Mitchell had learned that Walsh's ABA committee shot down Lillie's candidacy, saying, in effect, that no woman was yet qualified to sit on the Supreme Court. Nixon loved this: he had scored points with women voters by putting up Lillie's name, but could watch the ABA take the heat for dismissing her candidacy. Nixon was eager to leak the ABA report, but determined to keep his news a secret.

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RN: The woman thing, that's got to get out [to the press] some way. I mean, naturally the [ABA] vote will get out, won't it? Everything else has leaked out of there. Now believe me, we're going to leak this out if they don't.

JM: You can rest assured we'll get it out one way or the other. And Walsh knows it's coming. He's been well programmed -

RN: And the eleven to one [vote]?

JM: Yes.

RN: And I think the eleven to one is brilliant, because it's a stacked jury. All men. Huh?

JM: Absolutely.

RN: And [the committee said] she's the best qualified woman but she's not qualified for the Supreme Court. Jesus, that's great. That's great. Now, in preparing my remarks, I'm going to use Safire, because he's our fastest writer on this sort of thing. So he may ask a question or two but you know it will be by my authority.

JM: Fine. He's the biggest leaker in the place. Can you turn him off?

RN: Well, I'm not going to tell him until the morning.

JM: Oh, I see.

RN: Oh hell, I'm not going to tell him tonight.

JM: I see.

RN: Oh Christ yeah, that's my point. He's a leaker. That's why once we decide, I'll start him running and lock him up [like we did with China].

JM: Great.

RN: Oh Christ. I know he leaks. Oh, he doesn't have the slightest idea that he's going to even be asked to do this job.

JM: All right, good, sir. I hear Howard Baker has just landed at the airport and he's waiting to talk to me.

RN: Waiting to talk to you?

JM: Mmm humm.

RN: Call me back.

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Howard Baker gave John Mitchell his decision that night: he did want the nomination. Mitchell called Nixon the next morning, October 21, with the news. The president was working on the televised speech he would give that night announcing his two Supreme Court nominees. Until this call with Mitchell, Nixon apparently had not decided who the second nominee would be -- Howard Baker or William Rehnquist.

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John Mitchell: Good morning, Mr. President.

President Nixon: Did you work it out?

JM: Baker wants to go. And I told him that you still had the options open and I would refer to you his availability.

RMN: Well, he wants to go now, huh?

JM: Yes sir, mmm hmm.

RMN: Well, Goddamnit, sure you couldn't talk him out of it, huh?

JM: Well, not on the basis in which we've been pushing him into it. But I went through the same routine, and I think you have an option if you want to go the other way.

RMN: [Sigh].

JM: I don't think it's going to disturb him too much if you use your options in another direction. If you feel stronger in that other direction.

RMN: Have you got anything-this'll decide me a lot. Could you take five minutes off and then call me back? What was his record in law school and so forth? Do you know anything about that?

JM: No, but I presume we might be able to dig it out.

RMN: I need to know. I want to know whether he was, he was just a playboy or whether he buckled down and did things. Because I'm preparing my remarks now and this all revolves around that, there are guys that are qualified, you see?

JM: All righty, I'll try and dig that out as fast as we can...Do you still want to keep your options open or do you just want me to turn him off?

RMN: No. I want the option open until I see what kind of a record he had. If he had an outstanding record, so that I can say that he and Powell both had outstanding records, that's one thing. But if it's a jackass record, then I really think I'm going to not, I'm going to close the option and go the other way. I have a feeling it oughta go the other way. That's just my gut reaction. What do you think?

JM: I feel that way for the better of the Court and I think that the PR on it is-- just about would break even.

RMN: On the one side, you've got two Southerners, which is not good.

JM: Mmm hmm.

RMN: On the other side, you've got a man who's unknown. But with a hell of a record. The unknown thing with Rehnquist is going to, really is not wash good, if he was high in his class, was he first or second or something like that?

JM: He was first in his class.

RMN: You think he was first?

JM: He was first. Yes, sir.

RMN: Yeah. Well, that's a hell of a thing.

JM: Phi Beta Kappa, of course.

RMN: Phi Beta Kappa, first in his class, law clerk to one of the great judges of this century, and practiced law as a lawyer's lawyer and so forth. Damn it, I really think we ought to go that way.

JM: All right, well, I'll turn Baker off.

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Next: part 5