October 14, 1971, 9:00 a.m.
President Nixon: Hello?
Mitchell: Good morning, Mr. President.
RMN: Hi, John. I think that the Bar Association apparently-- I suppose they put that story out. It makes it imperative that we're gonna have to move quicker on that court thing, you know. Did they - uh, I was wondering - they of course, weren't authorized to do that, were they?
JM: To do what, Mr. President?
RMN: Put out that story with the pictures and so forth, with the names we've submitted to them. They've never done that before.
JM: Well, they -
RMN: It puts us in a hell of a spot.
JM: The newspapers, of course, have picked up the names from the bar-- when they -
RMN: Who on the bar would do that, John? Someone working on the staff, I suppose?
JM: Well it would be the staff and it would probably be some of the Democrat members. You know there are a lot of Democrats on that as well as Republicans on the committee.
RMN: Send up a half dozen more names. Would you do that? Just to keep it confused. Could you just, send up, you know, like send down the Dean of that law school I don't want to limit to this, send down one of those Jewish - send Levy's name in, too. Would you do that please? Get that done right away, OK?
JM: Now -
RMN: I've got to do it because I just can't leave this hanging here, hanging here for a week now without -
JM: Which type of names?
RMN: Oh, God. I don't give a damn who they are. Some Jews and Liberals and so forth. Like Levy of Chicago; he'd be all right. Send him up as a name.
JM: Well if you do that of course, then it's gone to the public and -
RMN: Well send Johnson of - of that other one down there
JM: Frank Johnson?
RMN: Yes, Johnson, but that you've already sent Clark, you could send the fellow from the law school, down there. From Texas?
RMN: Just pick, if you can John. Send out any kind of names that are conservative enough. Powell. I don't know.
JM: Well, if we do that Mr. President, the press is going to focus on these people to the point where you will be run over with newspaper talk-
RMN: Urging me.
JM: That's right. --for not having done it.
RMN: Any you can think of -- that sort. Just to confuse it some. Because they're going to tear these to pieces. They will, I mean they'll always seize on what you've got as mediocrities and so forth and so on. That's what I'm concerned about.
JM: Well, if we go another route we're going to trap ourselves into the point of--
RMN: I've become convince the bar has broke its pick with me, come to the point where, with the bar--the next time we have an appointment they aren't going to have a chance to look at it John. Good god, I have more judgment and you have more judgment on--Who the hell oughta be - is qualified for the Court. What the hell does the bar know about it? Good god, I can take a bar examination better than any of those assholes.
JM: I agree. The bar is not doing this; this is what we would expect with anybody we sent up.
RMN: That's why we're not going to give 'em a chance again--they've broken their pick and I don't want you to tell them this because you need them for District Courts and the rest, but they're never again do they get a crack at me. They didn't do this with Burger, you know. And now they've done it. They didn't do it with Blackmun. They've broken their pick
JM: Well of course those announcements were made Mr. President, without any consultation with anybody.
RMN: Well you went through the bar, though.
JM: No. No we did not. We did not go through the bar.
RMN: That was our mistake here, then, I guess. Letting the bar have a crack at it.
JM: Every time you start a check the word gets out as to who they are and the press is going to take you on, whether it's the bar or not.
RMN: I think our strategy was right the other time, just not to ask the Bar. They squeal, but that's - I'm really sick of the bastards anyway. They're such a bunch of sanctimonious assholes. But I've told Ehrlichman to get off his ass and get me whatever little check he's gotta make. I really think we've gotta get it done, now. I mean, I don't they're really going to tear this, they're going to jump up and down on this now.
JM: I'd expect the bar to be helpful in this picture--
RMN: Yeah well the bar--.
JM: --by coming out with solid approvals of Friday and Lillie
RMN: --they're gonna be crackin around on them until we get ready to move. When can the bar be ready, be helpful?
JM: We haven't gotten an answer yet, but we're pushing them on it and hopefully
RMN: Will you get it by tomorrow by chance?
JM: I don't think that Walsh will be able get his committee together by that time. It will probably be the weekend
RMN: So what would be their line, then? Just to say they've approved two?
JM: Yes that's what we asked them to do: to approve Lillie and Friday, which I presume that you concentrated on.
RMN: Yeah. If you could push it faster - I told Erlichmann that I've gotta have his stuff by tomorrow. When we get it from the bar, we're just going to have to go with it. I don't want to. You see, the mistake we made with Pop is we let him get up there - and let them cannibalize him. I just don't want them to get killed before we do with this. I want the positive stuff first. If you just tell Walsh that we're terribly interested- that they don't have to check too damn much for someone like Friday, who has been practicing 25 years or Lillie, who's been on the bench 25 year. Friday and Lillie ought to be checking on them rather than the other way around. Would you mind pushing on this John?
JM: I'd be glad to.
RMN: I'm going to deny this story, by the way. Tell them we have several other names we're considering. Let the bar lie all they want.
JM: That's perfectly all right.
RMN: Tell them it's just among many we're considering - it's premature routine checks on a position…
JM: We can cover that.
RMN: Get 'em off on a red herring.
JM: I have a meeting here this afternoon with the pres and we can cover that Let me say, one other thing - I advised the chief justice
RMN: If I could say one other thing. Put them off the woman thing if you can - if they ask about the woman - no we haven't made a decision on the woman, as the president said we're considering - but that is just one consideration. I just don't want them to zero in on Lillie. We'll have Ziegler handle that. I always handle a woman with a smile. No one thinks we're going to do a woman, until this story, so if you can play it with a smile.
JM: Well this is how it has played all the way through,
RMN: Well just continue it --we're considering women. I'd put it this way, we're considering some people, but that doesn't mean they're going to get it. I would sorta like to get them off the woman thing.
JM: We're looking at qualifications
RMN: Yeah, sure, exactly. The qualifications. Oh you said you talked to chief justice?
JM: Yes sir, he wrote me a three to four page letter that I won't bother you with. He's talking all around the fact, uh, letting it be known he's not anxious to have a woman.
RMN: I understand. I'm sure, no more anxious than I am.
JM: That could be expected, but letting it be know that he'd take it in good grace.
RMN: He's got to do it. He will do it and he's the guy to handle that. The thing to do, is to let him know he can play a great role. He's the most skillful man. One thing, incidentally, I have a thought, John if anyone ask you about mediocre people, you can just smile and say, I remember when the president named Mr. Burger, there were a number of editorials and snide comments that he wasn't a distinguished lawyer and everyone would agree that he's distinguished now. And you can say, I remember when Justice Black was appointed, many criticized him because he wasn't a distinguished jurist, and certainly in fairness, critics and defenders agree now. I'd really knock the distinguished thing hard. Now you see they're taking on Friday as a bond lawyer. You see my point?
JM: I do
RMN: I 'm not going to let them tear these people to pieces
JM: I don't think they're going to
RMN: Well this Times thing is kind of rough
JM: Well it was not so much the story, it was the headline, if you noticed that, it was the headline, not the story
RMN: I agree, the headline was worse than the story. I put some money, there'll be editorials over the weekend. I just want to beat the bastards on this, I just don't want to create an impression that we're looking for a bunch of nonentities, a bunch of Southerners and women, you see. And goddamnit
JM: Well as long as they have your philosophy, they're going to attack them.
RMN: My plan is, if we get out first, as soon as we get it , I'm going to do this on television, then we get the goddamn story out first and then we're way ahead of them.
JM: That's right
RMN: That's why I'd really like to push it as fast -my thought--Now John, I believe we should do them together, but if we send the woman up with the man, its going to so dominate the other story - So I'll announce Friday's name up first, Monday or Tuesday, and then Lilies the next day, and when I sent Friday's I say I go out and describe him and give him a day's ride throughout the country and say I'll be coming out with another announcement the day after our thing is complete - would that satisfy you?
JM: Yes, I think-
RMN: This is how I'll do it, otherwise the woman thing will not be fair to Friday. You see? That all right with you?
JM: Yes, sir.
RMN: Then I can give Friday a helluva pitch and the next day give the woman a pitch on her own. This woman story is going to be big, even though it's been leaked out a bit, we'll have Ziegler discount the woman story today a bit today too.
JM: Yes, sir, we can do that. Did you see how they're pitching it that she's a leading Catholic layman, and a democrat
RMN: (Laughs) I can't wait, and incidentally, appointed by Warren. Those are all pretty good, a democrat, appointed by Warren, a leading Catholic layman. I thought they did Friday - I didn't like them calling him a bond layer,
JM: That was a snide operation as you know.
RMN: I mean what the hell is wrong with a bond lawyer?
JM: Ninety 90 percent of his business is in the other-
RMN: Oh, sure. Anyway, good luck this afternoon.
JM: Thanks, bye.