Interview with John Dean
Excerpts from an interview by Kate Ellis.
Listen (note: Kate Ellis is inaudible on the tape.)
JD: I'm John Dean. I was the Counsel to the President during the Nixon years.
KE: In mid-September, 1971, Nixon found himself with two Supreme Court openings. Who retired?
JD: What happened in the fall of 1971 is that we had word finally after having rumors all summer that there would be an unusual election year, because in '71 it appeared that two vacancies were going to appear on the court, namely that of John Harlan and Hugo Black, two justices that had been there for a number of years and they were both ill and both retiring.
KE: What kind of opportunity did this give Nixon?
JD: Seldom does a president know if and when he'll get any Supreme Court appointees. For example Jimmy Carter got none. Nixon got four. He'd already had an opportunity to put the Chief Justice in and so this was an opportunity again to fill further seats and this is always good for a president. So it's the political advantage of being able to influence the court, make supporters believe you're doing what they want. And it's really the political plus of getting the opportunity to do that during a term.
When you get to put four justices on as Nixon would you do have an impact at least for potential influencing votes on the court so this was really a windfall when it happened.
KE: Describe the process Nixon followed to choose his nominees.
JD: When presidents are lawyers they tend to get much more involved in this process than non-lawyer presidents. For example Bush I, who was a non-lawyer, really turned it all over to his consul. Richard Nixon, who was an attorney - in fact who had argued in front of the Supreme Court - was deeply involved in the process and really from start to finish. The way he set the process up was that the Justice Department was to come up with the potential candidates and then bring them over to the White House. Well, when this happened initially there were some very bad selections. They turned out to be very controversial. In fact two of the original selections that Nixon would make early on were rejected being, well the rejections were Southerners - Nixon was trying to play politically to the South and he nominated a sitting judge from the 4th circuit by the name of Haynesworth. Haynesworth really was a very able and qualified judge but because of some earlier action by Nixon where he had been very influential in removing one of the Justices, Abe Fortas, there was a payback time up at the Senate and so they made it as hard as possible and they rejected Haynesworth. And so Nixon selected another controversial, even more controversial and somewhat questionably qualified man who was sitting - had been on the district court, had been elevated just briefly before to the Court of Appeals, a man by the name of Harold Carswell. And the Senate rejected him as well.
So Nixon was pretty well bloodied by the time he got around to the fall of '71 to start collecting justices and as I say in the book the process had evolved because Nixon really became much more involved himself and got the White House staff and persons like myself involved after the Justice Department had a couple failures.
KE: What was your role in the process?
JD: My role was really to be that of a gopher and a vetter. What is a vetter? A vetter is a guy who goes out and asks a potential nominee a lot of questions; is prepared to help that person through the process, the nomination process. I knew my way around the Hill. I had once served as the Chief Minority Counsel of the House Judiciary Committee and also had been in charge of congressional relations for the Justice Department. So I knew the game and my job was to make sure that whoever was on that short list was qualified to be on the short list and would not be an embarrassment to the president.
KE: Who else was involved in the process?
JD: Well initially the major players were at the Justice Department. It was John Mitchell and the person who ran the radar machine for John Mitchell was none other than William Rehnquist, who was the assistant attorney general in charge of the office of legal counsel and a former law clerk who had once been at the high court. So he was pretty good at trying to figure out what were appropriate qualifications for a justice to have. But they were really the key players and over at the White House it was John Ehrlichman, who had been my predecessor as counsel, and myself.
KE: Describe John Mitchell's relationship to Nixon.
JD: Attorney General John Mitchell had once been Richard Nixon's law partner in New York. He was basically a bond lawyer, that was his background - municipal bonds, doing the legal work through the New York brokerage houses to raise money for state and municipal bond issues, but he came to Washington. He served as the campaign manager for Richard Nixon in '68 and again in '72, so he knew Nixon well. He was initially more of a peer for Nixon than a staffer. Whereas everybody at the White House was a member of the staff and not anywhere close to being a peer, but the fact that Mitchell had once been his law partner put him in that peer category.
As the taped conversations show, the relationships between Nixon is really different with everybody on the staff. There's a certain intimacy in his relationship with John Mitchell. There's more of a staff relationship when he's talking to people like Haldeman or Ehrlichman or myself. There were some people on the staff like Dick Moore, Richard Moore, who he would bounce ideas off of and just sort of seek their wisdom. So you hear different relationships he has with different people and it really comes through on the tapes.
KE: What was Nixon like to work with during the selection process?
JD: When it got around to selecting justices Nixon got very involved in the process. In fact he held this closer to the vest than anything that he'd really done in a long time. In fact his selection of the justices that he would pick in the fall of '71, he really at one point wouldn't tell anybody. In fact Mitchell wasn't sure, Haldeman wasn't sure, he didn't want it to leak and he didn't even want his own thinking to leak out. So he held this very closely. That's why it was fun for me to go back and listen to the tapes of this whole period because I didn't know what had happened behind those closed doors. I knew what happened outside them and had lots of memos in my files and had been involved in the process. I didn't know what happened behind closed doors, so the tapes give us that very unique insider fly-on-the-wall vantage point to hear what's going on.
KE: Why was it so important to Nixon to surprise the media with his nominees?
JD: Every president likes to surprise the media. They don't like it when information is leaked. It has the maximum impact they feel if it comes out and it surprises everybody and nobody knew about it in advance. So it's the theater of it as much as anything and the modern presidency really is very much dictated by the theater of the office. We're in a media information age and presidents play to that. Nixon was certainly one of the first presidencies that really made this an underlying part of its governing process.
In the Nixon administration leaks were a serious problem. In fact that's where a lot of the roots of Watergate are found - in Nixon's really almost paranoia about leaks where he's trying to track them down so he has the FBI conducting wire taps on members of the National Security Council, his own White House staff and they stay in for months after months after months trying to track down who the leaker might be.
KE: Was there a problem with leaks during Nixon's selection processs?
JD: There were leaks to some degree during the '71 selection process for justices. What surprised Nixon was the amount of information that the media was able to get very quickly about all of his potential nominees. But some of them were controlled leaks as well, where they put them out, put the names out, we believe, through the American Bar Association committee that was also passing on whether these people were qualified to sit on the court or not. So there was some leaking and it did annoy Nixon, but he also got educated by it. When you listen to the tapes of the Nixon selection process you realize how much a president can be affected by the media. The media didn't like some of his suggestions so at one point he says that he's going to show the Senate and the world: what he's going to do is select Bob Byrd, who is still a senator and Byrd had a record of not being much of a lawyer. He had been to law school, but he never practiced and he'd never been admitted to the bar. He'd been a member of the Ku Klux Klan and a few other things like this, although he later renounced it.
KE: Why did Nixon consider Senator Byrd?
JD: Nixon liked him. He was sort of a bandy rooster that Nixon thought, you know, 'I may just stick this guy on the court'. This of course horrified Ehrlichman. It horrified me and it horrified everybody that heard it because it would take, oh, 2 or 3 years before Byrd could adjust himself to really being a justice. Not that he would have been a bad one. Who knows? Who knows?
KE: What characteristics was Nixon looking for in the people he considered for the Supreme Court?
JD: What Nixon really came down to was a flight to quality, if you will. He got banged around pretty badly by some of the names that were floated early as to who he might fill the Black and the Harlan seat with, and so he began looking at their class ranking, their resumes and became much more conscious of the quality of the people he was going to select, and that became the key. He had early decided on a man by the name of Richard Poff, who now is a senior justice on the Virginia Supreme Court. And had Poff wanted it, Poff would have been selected. But Poff himself, because he had been on the wrong side of civil rights as a Virginia congressman, didn't really want to put himself or his family through the controversy of being nominated and then beat up through the senate confirmation process. So he withdrew his name fairly early, but he would have been a good justice. No one knows what would have happened had he been up there.
But as I say, as the process unfolded and the selections became narrowed, really he wanted somebody who was able, somebody who had the credentials to be a Justice, the intellectual ability to be a Justice, and also he wanted what he called a strict constructionist.
KE: What is a strict constructionist?
JD: What I found in reconstructing this story of how Nixon selected justices was a memo that Bill Rehnquist wrote when he was analyzing the Haynesworth nomination to determine whether Haynesworth was a strict constructionist. And in this memo, at the end of it, we have what now the Chief Justice of the United States thinks is a strict constructionist, and it is: "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, the latter two groups having been the principal beneficiaries of the Supreme Court's broad constructionist reading of the Constitution. The following conclusions about judge Haynesworth's ideas of the law appear warranted." In other words, he said that he found that clearly Haynesworth was a strict constructionist. So a strict constructionist is somebody who really is against civil rights plaintiffs - those are the people who are trying to protect their civil rights - or criminal defendants, who are also seeking to protect their rights. And Bill Rehnquist has certainly proven himself a strict constructionist.
KE: Tell me about the role of the American Bar Association in Nixon's selection process.
JD: There is a - at the time, actually, since the Eisenhower administration through the Clinton administration - all the selections for the federal bench had been processed by a committee of the American Bar Association, and particularly the Supreme Court selections. So the American Bar Association would talk to colleagues. Say it was a sitting judge, they'd talk to other people on the bench, they'd talk to former law partners, talk to all kinds of people about the abilities of that person for that judgeship. And those who met all the criteria were deemed highly qualified and believed to have all the other attributes to be a good justice. So that would be a highly qualified.
The unqualified ones, it's pretty gray as to who was unqualified. Particularly to have a sitting judge and to call that person unqualified is pretty harsh although it did happen in this instance with one of Nixon's selections when he really wanted to select a woman. From the outset of the process Nixon realized that politically the time had come. In fact, some of the tapes are really quite humorous where Nixon is talking about his personal feelings about selecting a woman. He doesn't think a woman should even be educated. He wants them barefoot and in the bedroom, but he realizes from his daughters and his wife that he is an antique in that regard and he knows that politically it would be very good if he could find a woman to put on the court. So we devised various lists of women and he settled on a woman who had been on the middle level of court in California. A woman by the name of Mildred Lillie; they actually called them justices at that level. And Justice Lillie had been selected by a very liberal democratic governor, but was known as a conservative on law enforcement issues, which Nixon liked. And she was a Catholic, so she was right on the abortion issue for Nixon, and she was one of the people I vetted. I think she would have made a great Justice. I later - after Sandra Day O'Connor was selected - I lined up the credentials of these two women and Mildred Lillie was every bit, if not more, qualified to be a Justice than Day O'Connor.
But what happened was the American Bar Association at that time was made up of all men and the old boys did not think that it was time for a woman to be on the high court. But the principal person who really objected to Nixon selecting a woman was none other than the Chief Justice himself, Warren Burger, who threatened that he would resign if Nixon put a woman on the court. When John Mitchell brought that message down, Nixon said, 'well you just let him resign then'. He was serious about it.
KE: So was Nixon disappointed when the ABA shot down Lillie as a potential nominee?
JD: Actually, as it turned out, when the American Bar Association said that Mildred Lillie was unqualified, which how they could say that - it was a real reach to reach that conclusion - but when they said that, Nixon realized he was in the best of both worlds. One, he had done his best to put a woman on the court, but the American Bar Association had really blocked him and he knew he couldn't have won that fight. So he thought he could get credit politically for having wanted a woman but yet having been blocked and really his true desire - he said, 'can you imagine putting a woman on the Court? It'd be like putting a woman in a spaceship!'
KE: Who headed up the ABA?
JD: The person who headed up that committee was Lawrence Walsh. Lawrence Walsh would become better known as the special prosecutor or independent counsel who investigated the Iran Contra Scandal. He would become a very controversial independent counsel for his investigation of Reagan and Bush Senior during that time.
KE: What other qualities was Nixon looking for in the nominees he considered?
JD: Clearly the political advantage for Nixon in having these political opportunities fit right into his Southern strategy. That's why he wanted to have a southern person who he selected to represent the South. Also, Hugo Black, who he was replacing, had come from the South and he wanted a conservative because he felt that was a part of his pledge to find strict constructionists and people who were tough on law and order and put them on the bench. This had been a 1968 campaign issue and he wanted to go out in 1972 and say, 'well I filled those promises; look at the people I've put on the court.'
KE: So Nixon was trying to get as much political mileage as he could from the people he appointed to the Court.
JD: I would say with the modern presidency and by the modern presidency probably the pre-modern presidency - certainly every president I've looked at since 1900- the politics of a selection has been almost paramount. There has been no question that presidents know that their legacy will continue on that Court long after they're gone if they select somebody who has their type of thoughts and their political philosophy. So I think that fits in with virtually every president who has ever selected a modern Justice, and with Nixon and probably all the presidents since Nixon, to take the maximum political advantage of it has been absolutely fundamental. In fact, at some point it's very likely that George Bush may get a selection; in fact he may get one this summer. And there's no question he will try to get all the political hay out of that he can get to satisfy his constituency on this, and particularly he'll go to the hard right on this. Whether he can succeed or not is another question.
KE: So what happened next?
JD: What happens in the process is that after Mildred Lillie is rejected he then decides he's got two people that he's focused on. He's focused on Lewis Powell, a southerner, a successful lawyer, a former president of the American Bar Association and a very distinguished man who had not actually been on any court, but who certainly had all the necessary qualifications. Lewis Powell, when he was first approached and had been approached actually earlier in the Nixon administration, said that he wasn't interested. It turns out he was not interested because he was going blind and he didn't want to be blind and on the Court. In fact, that was one of the problems with John Harlan, who was retiring, had a true sight problem. He could only see documents if he got about an inch away from them. So Lewis Powell had to be convinced. And one of the more interesting tapes is Nixon doing something that he really didn't like to do and that is to personally call Powell and lean on him to take the job. And it's Nixon really at his best in that conversation. The tape really speaks for itself. I'm not going to repeat the tape because I don't have it in front of me, but it's just Nixon at his best.
KE: How so?
JD: It's interesting. You have to understand that Nixon did not want to make this type of call. He's generally not very good at it. It's an unpleasant thing for him to have to try to persuade somebody, and particularly as president he doesn't want to be turned down. So he handles this with a very nice touch and it's, I think you have to listen to the tape. In fact, reading the transcript is not nearly as effective, in this instance, as hearing Nixon, as they sort of parry back and forth in this conversation between two people, where you have one that wants something and the other doesn't, but really neither one wants to say what's going on. So there's a subtext that comes out that's very evident when you hear the tape.
Now let's go on with the final people who were in the play. The other person that Nixon focused on in addition to Powell was Senator Howard Baker, who was a young senator, who was really just starting in the senate. He was a young lawyer from the south, from Tennessee, and had a good record. So Nixon was very interested in Howard Baker and so those had really become his two final selections. So after Powell said yes he was down to Howard Baker, but Howard Baker said, 'well I need some time to think about this'. Baker just sort of disappeared. We know that he went and visited a sitting Justice on the Supreme Court to find out what it was like up there. Somebody he knew, Potter Stewart, who was an Eisenhower appointee, and so went to talk about it all. And he spent some time with family and what have you, but he disappeared from returning John Mitchell's calls. He didn't respond; he was ducking it. He didn't really want to bite the bullet, and as he was dithering Nixon got nervous because he had set a time limit with the press as to when he was going to make this announcement. And so what happened is Howard Baker just dithered himself right out of the job.
KE: What happened while Baker dithered?
JD: Nixon gets into another conversation with another member of the staff, and I had meanwhile been trying to sell Rehnquist as exactly what Nixon wanted. He would fit his criteria to a T, and Nixon didn't know Rehnquist from Adam. But anyway, Dick Moore gets into a conversation with Nixon and says, 'well hey you're counsel John Dean says you ought to be considering Rehnquist', and Nixon says, 'well tell me more', and he does. And when Nixon learns that they think Rehnquist is number two in his class at Stanford - Stanford being one of the better Law Schools in the country - and Nixon is definitely impressed. Actually, Rehnquist was number one in his class, and so the focus then turns to Rehnquist. And the reason Rehnquist had never been on anybody's radar before was because Rehnquist was running the radar machine over on Justice, sort of looking for these justices. And he was sort of shocked to find out that he was even being considered and didn't find out until the morning that Nixon would announce him. I'm not quite sure what would have happened had Rehnquist said no, but when Nixon learned that he had been number one in his class, that he had clerked for a Justice for whom Nixon had great respect, Justice Jackson, Nixon said, 'that's my man'. So he wanted then Powell and Rehnquist, and when Rehnquist said yes it was a done deal.
At one point Nixon had two requests out. He'd already put the word out to Rehnquist that he wanted him and he hadn't really gotten the request back one way or another from Baker. So they sort of finessed it, and finally Mitchell calls Baker and thankfully Baker learns that in essence the president wants to move on. And so this gets Baker off the hook, so it worked for everybody.
KE: Do you think Baker was disappointed?
JD: I don't think he really wanted the job. I think the reason he didn't want the job was that he was just starting his senate career; he was worried about the financial burden of having to put children through school and all this sort of thing. So there were just multiple problems and he just didn't think that he was well-suited for the sort of cloistered academic life of a Justice.
KE: What was Rehnquist's reputation at the time?
JD: Well no one knew much about Rehnquist. I knew he was a rock-rib conservative because I'd been working with him for several years, both while I was over at the Department of Justice and then over at the White House. He was a man who could always find the right answer for the president when a message was sent over from the White House. So I had no question where he would be philosophically. But I didn't know the full extent.
KE: Do you have any regrets about your role in this?
JD: I've got to be fully candid and say had I known that Rehnquist would be as hardnosed as he's proven himself with women and minorities and civil rights issues, I would have never opened my mouth. In fact, I have some regrets about doing so because he wasn't being considered. But no one really knows, because a person sort of grows into this role. But I realize today after looking more closely at Rehnquist that he sort of was flash frozen somewhere around his last year of high school into being a conservative, and he's only become more conservative and he's certainly proved that on the Court.
KE: What do you mean?
JD: I mean his philosophy never, he didn't grow. He didn't change. He just tried to find more arguments to support where he had locked himself into believing this is the way it should be.
Initially, when Rehnquist went on the Court, he was the soul dissenter in case after case after case. But as time passed and then when Reagan selected him to be Chief Justice, he had a growing impact. And, as we know, the country became more conservative. Reagan was able to make several conservative appointments. Warren Burger really was, as Chief Justice, very impressed with Rehnquist. I'm sure that Rehnquist could run intellectual circles around Warren Burger, so it wouldn't surprise me that he would be impressed. And I suspect that Warren Burger was definitely involved in getting to Reagan and saying, 'hey, this is the man you ought to put in my seat and I'm going to retire, I'm getting too old to do this and here's the man who can handle it'.
The Chief Justice is more than just the leader of the court. He's just one vote, but he also has a lot of administrative functions. He's the head of some of the administrative bodies relating to the federal judiciary, so he can have an impact in the administration of the federal court system. But there's no question that Rehnquist intellectually has become a very dominant figure on the court.
KE: As Nixon was planning to announce his nominees, he became very concerned with keeping their names a secret. He even suggests misleading the press. Why?
JD: When it got down to the final selection process, the word got out as to who was or was not going to be appointed. Nixon loved this. In fact, at one point he kind of conspires with Ziegler, his press secretary, trying to get Dan Rather of CBS to announce who he thinks it's going to be, knowing it's dead wrong. Ziegler didn't buy into that because he knew it would only hurt his own credibility to do that. But Nixon, it's just the game that he liked to play to show the press that they didn't know everything that was going on. In fact, even more extreme than Nixon was Johnson. Johnson had occasionally made selections of people for various appointments; the word leaked, he would then cancel it and select somebody else. So it's something that seems to be that presidents just like to play this kind of game with the press and stay one step ahead of them.
KE: How did Rehnquist's confirmation process go?
JD: When Rehnquist was confirmed or submitted in '71 with Lewis Powell, both nominations really went through relatively smoothly. There was a little flack that Rehnquist got, but nothing like he would get in '86 when he was later nominated to be Chief Justice. So it really was very smooth and the interesting thing about Rehnquist was he was never vetted. He was just selected and never went through the normal process that we had put every nominee who'd gone to the court through. And this troubled Haldeman, the Chief of Staff, greatly. And Haldeman is picking this up secondhand from Dick Moore as to what Nixon's going to do and is very worried and calls me and says to me at one point, 'well tell me about Rehnquist: is he really qualified'? and so on and so forth. So he did not go through the vetting process. Had he gone through the vetting process some of the issues that would come up [in 1986] might have been flushed out and handled differently, because he made some statements that are flat out wrong. And I believe he knew they were wrong and decided to try to duck them.
I believe had he been properly vetted - there were some questions about what he had done as a law clerk that we didn't look at, but we would have looked at had he gone under the normal vetting process, and he would have been prepared to answer some of the questions that came up somewhat by surprise for him during his confirmation hearing. Since he wasn't vetted, it never happened, and as I say it was a bad way to proceed. And the other questions that came up were his role, for example, back in Arizona as to whether he was challenging voters improperly, blacks and Mexican Americans and trying to deny them the right to vote by having them read literacy tests and things like that. There turned out to be a lot of evidence contrary to the position he took in the '71 hearing that came out in his '86 hearing. As I said, had he been vetted those would have been non-issues. They would have been non-issues in '71 and non-issues in '86. But anybody who looks at it closely had no doubt in their mind that Rehnquist lied in '71 and got caught in '86.
KE: What do we learn about Nixon by listening to him on the phone?
JD: Well, as somebody who has listened to an awful lot of Nixon tapes - and his tapes were made in the Oval Office, they were made in his executive billing office over across the way from the White House, they were made at Camp David, they were made in the Lincoln sitting room, they were on telephones scattered throughout. I find that his most intimate conversations and his most conspiratorial conversations, if you will, occurred in his hideaway executive office, whether they be telephone or personal. And unfortunately the quality of the tape is very bad when you're in that building, the EOB. For some reason the placement of the microphone and the desks and the ambiance of the room really gives you terrible quality. So the telephones are pretty good over there, the telephones are pretty good throughout. But I must say that I can't really hear a great difference in Nixon on the telephone versus in the office itself. It's interesting to just focus on the telephone calls because they're of better quality, but I can't say that they're any more revelatory to the nature of the man. In fact, to the contrary: I think when he's sitting there talking with his aids he's much less conscious to the fact that he's taping, whereas he's certainly aware that he's talking to somebody on the other end. So he's more staged, if you will, when he's on the telephone than if he's rambling around in the office talking with aids.
KE: Do you think this is different from Johnson?
JD: Well Johnson also when he's on the phone is hitting the switch, so he knows he's recording. You've got to realize with Nixon, I suspect both on the phone and in the office, there are times that he appears just totally oblivious of the fact that he's taping himself, because it's a voice activated system.
KE: Meaning, what?
JD: Well it just means that he's very unguarded often in both telephone and room conversations because he has done nothing that would trigger his thought processes that, 'I'm recording myself'. In other words, he just picked up the phone quickly. You have to understand how the White House phone system worked. He didn't dial numbers. As soon as he picked up the phone everybody on the staff had what you called the White House line. As soon as you picked that up you had the White House operator on the other end and he would just tell the operator to do this, that, and the other, and she would just call back. Or he would just say, 'get me so and so,' and he'd just stay on for a minute and get connected if it was someone on the staff. So there's not a lot of thought process into a president picking up the phone.
KE: Anything you would like to add about Nixon's tapes and the Rehnquist decision?
JD: Well what we learn is because of the Nixon tapes, both telephone and room, we learn how the process really works. It's so unique. No president has ever done what Nixon did, particularly where we can track a selection process like we did with Rehnquist and Powell. We go really from the day he learns there are vacancies to the time he [makes] the announcement. And a number of academics have studied this over the years and I've had an awful lot of letters on it. They've just absolutely loved this book because they never could be quite sure exactly how it all worked. And I don't think we'll ever get another chance like this, because I don't think anyone is ever going to tape themselves again. And that's part of the reason why I did this and pulled it all together, because it really shows how the decision was made. And it's both funny at times, it's both serious, it shows Nixon pulling up his sleeves and doing it himself and writing his own speech rather than turn it over to speech writers. It's a very interesting process to see how his mental rationale and reasoning works itself out. And you can't do it really in sound clips. But it's a unique opportunity to understand that process.
John Dean is author of The Rehnquist Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme Court.