October 21, 1971, 9:33 a.m.
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, God damn it, 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.
JM: I don't think it's going to disturb him too much if you use your options in another direction.
RMN: Mmm hmm.
JM: If you feel stronger in that other direction.
RMN: Have you got anything that will help me decide this? 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.
RMN: Now do you think we are in a position of telling him no? We just feel that under the political considerations that you've raised, Howard, are such that you shouldn't go.
JM: Yes, put it on that basis.
RMN: Yeah, and I've thought about it, and I have thought overnight too, and I just think his political considerations, that the judgment is that way. If he wants to go at a later time, why the place will be open for him. Put it that way, see?
JM: I think we ought to get back to him right quick on it, though.
RMN: All right. Fine. Call me right back. I need to know what his law school record was.
JM: 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 I'm going to 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 breakeven.
RMN: On the one side, you've got two southerners, which is not good.
JM: Mum 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 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, mmm hmm. Well, that's a hell of a club.
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.
RMN: I think you ought to say, Howard, in the view of the fact that you've had some doubts, but also, frankly, the President really feels that the political things that you've raised are questions, and the place will be open for you later if you want it, because we need two southerners on that Court anyway. And that maybe you'll want to take another crack at the leadership and so forth. Okay, take him off.
JM: Yes sir.