William Rehnquist was a Justice Department lawyer when Nixon chose him for the Supreme Court. photo: NARA
One of the most important decisions a president can make is naming a Justice to the U.S. Supreme Court. While the nominee must be confirmed by the Senate, selecting a Justice is the president's chance to affect how the nation's laws are interpreted and enforced.
Between 1969 and 1971, President Richard Nixon had the opportunity to appoint four justices to the Supreme Court. None would have a greater effect on the Court than one Nixon selected at the very last minute: William Rehnquist. Rehnquist served on the Court for more than 30 years - and as Chief Justice since 1986. In that time, he has presided over a profoundly conservative shift on the Court. Perhaps the most surprising thing about Rehnquist's nomination is that it almost didn't happen.
In 1970, Nixon appointed two men to the Court, Chief Justice Warren Burger and Associate Justice Harry Blackmun. In the fall of 1971, he had two more openings to fill. President Nixon took more than a month to choose his nominees. In that time, he considered at least 35 people for the job. The American Bar Association (ABA), which normally vetted potential Court nominees, had criticized Nixon in the past for putting up mediocre candidates. Nixon also took a beating in the press when a list of people he was considering for the Court got leaked to the New York Times. Furious about the leak, Nixon phoned Attorney General John Mitchell on October 14,1971. The president demanded that Mitchell - his main advisor during the selection process - send a bogus list of randomly-selected potential nominees to the ABA, just to confuse the press.
President Nixon: Hello?
John 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?
JM: Right.
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 convinced 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....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.
Despite the president's contempt for the media, John Dean, former counsel to the president, says Nixon learned from the negative press that he had to find nominees who were highly distinguished. "When you listen to the tapes of the Nixon selection process you realize how much a president can be affected by the media," Dean says. "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 seats with. So he began looking at their class-ranking, their resumes, and became much more conscious of the quality of people he was going to select."
