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'The Rehnquist Choice' by John Dean

Dean: Former boss Nixon ridiculed the process in the way he chose Rehnquist for high court

Sunday, December 30, 2001

By Ken Gormley


The Rehnquist Choice

By John Dean

The Free Press

John Dean, the ex-White House counsel whose testimony damned President Richard Nixon during Watergate, now provides a glimpse of the near-pandemonic events that led to Nixon’s appointment of Supreme Court Justice William H. Rehnquist in 1971.

His book opens with Rehnquist as a young assistant attorney general screening potential Supreme Court candidates to assist the White House. It was Dean, almost as a lark, who proposed Rehnquist after a series of conservative White House trial balloons popped. (Dean told a White House colleague: “Bill Rehnquist makes Barry Goldwater look like a liberal.”)

Anyone looking for juicy evidence that Rehnquist steered the job to himself will not find it here. What Dean does deliver is a smoothly written, carefully documented, eye-popping account of the follies that engulfed the Nixon White House, even when an event as solemn as selecting a Supreme Court Justice arose.

Using recently released White House tapes, Dean details a 35-day process that whirls around like a carnival wheel, until the 47-year-old Rehnquist climbs out of obscurity to become the 100th associate justice.

Rehnquist is today one of the most dominant figures in American law. Yet in 1971, Nixon couldn’t keep his name straight (the president referred to him as “Renchburg” and “Rensler.”) Dean’s book is laden with startling and amusing insights. Some examples:

When Justice Hugo L. Black left the Court due to illness, Nixon tossed around a number of names to fill the vacancy, including Vice President Spiro Agnew (who later resigned for accepting bribes) and Philadelphia District Attorney Arlen Specter (now Republican senator from Pennsylvania). Said Nixon of Specter: “He’s strong on law enforcement, and the rest, and I might want to consider him, if we want to play the Jews.”

Nixon also flirted mischievously with the notion of appointing West Virginia Sen. Robert Byrd, because Nixon viewed Byrd as a “mean little rooster,” whose nomination would “raise hell” in the Senate.

Nixon repeatedly toyed with the idea of appointing a woman, to gain “a percentage or two” of voters. He seriously considered California Judge Mildred Lillie but feared the wrath of Chief Justice Warren Burger, who he believed was not ready for a female on the court. Said Nixon to Attorney General John Mitchell: “It’s a shock to me ... I don’t even think women should be educated.”

In suggesting that Mitchell break the “woman” news to Burger, Nixon proposed explaining: “It was hard for them to take a black, particularly a dumb black. And at least I have given them a bright woman. Now just put it that way.”

When Lillie was deemed unqualified by the American Bar Association and Justice John Marshall Harlan retired to create another vacancy, Nixon settled on Lewis F. Powell Jr. for one seat. The second, he offered (almost impulsively) to Rehnquist because of his rock-solid conservative views, even though he said Rehnquist “dressed like a clown.” Aide John Ehrlichman worried that this appointment would earn them no political chits: “Because he isn’t a woman, he isn’t a Southerner, he isn’t any of those other things.” To which Nixon replied, jovially: “Maybe he can get a sex change.”

In their only private conversation, Nixon advised Rehnquist: “Just be as mean and rough as they said you were.” John Dean ends his rollicking account by concluding that Rehnquist, who was never properly vetted, gave untruthful testimony in an effort to bury his own skeletons. Dean resurrects evidence that Rehnquist drafted a memo to Justice Robert Jackson, for whom he clerked, advising Jackson to “reaffirm” the racist doctrine of “separate but equal.” Rehnquist denied this at his confirmation hearings.

According to Dean, Rehnquist was also untruthful about his role in challenging black voters as a poll-watcher in Phoenix in 1968. Concludes Dean: “Rehnquist lied.” But the value of Dean’s account in “The Rehnquist Choice” inheres not in its resifting of old dirt. Rather, it is most significant as a colorful, startling portrait of Richard M. Nixon making one of the most important appointments of modern American history in an almost farcical, sacrilegious fashion. Just when we thought we had seen the worst of the Nixon tapes, we discover there were more. Perhaps Nixon should have burned them after all.

Ken Gormley is a professor at the Duquesne University School of Law and author of “Archibald Cox: Conscience of a Nation,” the biography of the first Watergate special prosecutor.

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