The Rehnquist Choice

The Untold Story of the Nixon Appointment That Redefined the Supreme Court

John W. Dean

• Publisher: Free Press
• Year: 2002
• ISBN:
  9780743229791
• Topic: Politics & International Relations
• Subtopic: Political Process
• Index: Politics & International Relations

The explosive, never-before-revealed story of how William Rehnquist became a Supreme Court Justice, told by the man responsible for his candidacy.

1

INTRODUCTION:

THE BACKSTORY

THE HEART OF THE STORY of William Rehnquist’s appointment to the Supreme Court begins on September 17, 1971, and ends with an announcement on October 21, 1971. That story begins in the next chapter. First, it is important to understand the backstory.

It is well known that Richard Nixon made extraordinary use and abuse of his presidential powers. It is not widely known that those uses and abuses also related to the Supreme Court. More than any president since Franklin D. Roosevelt, he worked hard to mold the Court to his political liking. That meant not only making conservative appointments; it also meant creating appointments. William Rehnquist, who would be Nixon’s most important appointment, was actively involved in the efforts to create vacancies on the Court while serving as an assistant attorney general. It is not an overstatement to say that Rehnquist, working with Nixon’s attorney general, John Mitchell, and others, misused the resources and powers of the Department of Justice, and other executive branch agencies, to literally unpack the Court by removing life-tenured justices they found philosophically or politically unacceptable. It was all part of a strategy that commenced even before Nixon assumed office.

Resignation of Chief Justice Earl Warren

The scheme began during the 1968 presidential campaign. The vacancy on the Supreme Court awaiting Richard Nixon when he became president was not an accident. Nixon had made certain that that vacancy would be his to fill. During the 1968 presidential campaign, by a letter of June 13, 1968, Chief Justice Earl Warren informed President Lyndon Johnson that he wished to resign “not because of reasons of health or on account of any personal or associational problems, but solely because of age.” Employing the easy candor that characterized all his decisions, Warren explained it was time “to give way to someone who will have more years ahead of him to cope with the problems which will come before the Court.”¹

Candidate Richard Nixon, and his campaign manager and law partner John N. Mitchell, knew exactly why Earl Warren had resigned when he did, five months before the November election decision.² The politically savvy Warren, a former governor of California, believed that Nixon would win. And Nixon’s “law and order” presidential campaign often targeted Warren’s Court. As Nixon biographer Stephen Ambrose observed, “By 1968, Nixon had become almost as critical of the Warren court as he was of the Johnson Administration. He was promising, as president, to appoint judges who would reverse some of the basic decisions of the past fifteen years. When Warren resigned, reports spread quickly that he had chosen this moment to do so because he feared that Nixon would win in November and eventually have the opportunity to appoint Warren’s successor.”³ Nixon did not attack Earl Warren personally — as many conservatives did. But he made sure that, as president, he would select the next chief justice.

Less than two weeks after receiving word that Warren wished to retire, President Johnson called the press into the Oval Office to announce: “I have the nomination for the chief justice. The nomination will go to the Senate shortly. It is Justice Abe Fortas, of the State of Tennessee,” whom Johnson had placed on the Court in 1965.⁴ To fill the Fortas seat as associate justice, Johnson added, “I am nominating Judge [Homer] Thornberry, presently on the Fifth Circuit.”⁵ The Democratic president had nominated two of his closest cronies, men he knew would continue the judicial activism of the Warren Court and the liberalism that Lyndon Johnson had embraced throughout his political career. It would prove a mistake for all.

While no one could read the U.S. Senate better than Lyndon Johnson, given his many years as its majority leader, in this instance he misread his strength as a lame-duck president. With Johnson not seeking reelection, and his vice president Hubert Humphrey fading in the race with Nixon, Senate Republicans, joined by southern Democrats who were less than enamored with Justice Fortas’s position on civil rights, decided to fight the Fortas nomination.

Publicly, Nixon remained above the fray. Privately, he encouraged Senator Robert Griffin (R-MI), to attack Fortas’s elevation to chief justice.⁶ The effort to block the nomination took several tacks. At the outset, Senator Griffin tried to make a point of Fortas’s close relationship with President Johnson, but his Republican colleague on the Judiciary Committee, Senate minority leader Everett Dirksen, dismissed that avenue. Dirksen observed that presidents regularly appointed “cronies” to the Supreme Court, citing Abraham Lincoln selecting his campaign manager David Davis, President Harry Truman appointing his private adviser Fred Vinson, and more recently President Kennedy sending his lieutenant Byron White to the Court.

As his biographer Laura Kalman notes, Fortas’s opponents then found an endless arsenal among his own opinions as a member of the Warren Court that could be used against him. For example, Republican senator Strom Thurmond of South Carolina spent several hours berating him about the Warren Court’s criminal law holdings, even holding Fortas responsible for a ruling made before he arrived.⁷ The Senate Judiciary Committee called a witness from the Citizens for Decent Literature, who had examined fifty-two of the Court’s rulings and determined that Fortas’s vote had prevented the Court from finding obscenity in forty-nine of the cases. In addition, the witness had a slide show (later reviewed by the senators, and press, in a closed session) to display the types of pornographic materials he found offensive but that Justice Fortas had tolerated.⁸

Most damaging, however, Senator Griffin received an anonymous tip from an American University employee, where Fortas was teaching a seminar at the law school, that the school had raised “an exorbitant sum from businessmen to pay Fortas’s salary.”⁹ At that time it was not unusual for a justice to earn outside income by teaching; but in this case the amount was relatively large — and possibly tainted. This was reason to reopen the hearings, which revealed that Fortas’s former law partner, Paul Porter, had gone to friends and clients to raise $30,000, with half going to the American University law school and the other half going to Fortas. Porter said that Fortas had not been told of this arrangement, but the Senate made much of the appearance of impropriety of Fortas’s $15,000 fee, which amounted to 40 percent of a Supreme Court justice’s salary at that time.

When the Fortas nomination came to the Senate floor, the Republicans mounted a historic filibuster — the first against a Supreme Court nomination. The Johnson White House lacked the political muscle to prevent this unless, it was said, Richard Nixon urged a halt. But Nixon refused to comment publicly, and through backchannels he sent advice and praise to the Republicans’ effort.¹⁰ On October 1, 1968, when the Senate failed to vote for cloture (thus ending the filibuster), Justice Fortas, realizing that his nomination was doomed, requested that Johnson withdraw it.¹¹ With the Fortas nomination defeated, the Thornberry nomination became moot. Given the limited time available, Johnson could name no successor to Chief Justice Earl Warren. The vacancy for chief justice awaited Nixon.

Ousting Abe Fortas

The story of how Richard Nixon created a second opening on the Court has never been fully told. After winning in November, Nixon arranged for retiring Chief Justice Earl Warren to remain on the Court until the end of the Court term in June 1969. This gave the new president six months to select his chief justice. Ostensibly to show Earl Warren his appreciation for remaining, but in truth because Nixon wanted to size up the remaining eight still on the Court for himself, he decided to have a White House dinner to honor the retiring chief justice.¹² Of particular interest to Nixon were five justices — William O. Douglas, Hugo Black, Thurgood Marshall, Abe Fortas, and William Brennan — who with Earl Warren formed the core of the Court’s controlling liberal voting bloc.

The “Earl Warren Dinner” on April 23, 1969, was a lavish, black-tie affair, with the members of the Supreme Court and wives, Earl Warren’s family, Nixon’s cabinet and wives, and his former law partners and their wives heading the guest list.¹³ Richard Nixon treated his old enemy Warren like a visiting head of state, starting with a private meeting with wives in the Yellow Oval Room in the family quarters, then a walk down the Grand Staircase with the Marine Band playing, where about 110 well-wishers including the chief’s family and friends awaited and watched, and finally with “Ruffles and Flourishes” to usher everyone into the East Room for a formal dinner, which ended with a convivial, and witty, toast to the chief justice by the president. Astute observers could have noticed that the new president’s guest list included three men he was actively considering for the Supreme Court: Thomas E. Dewey, Herbert Brownell, and Warren Burger.

Only a few Nixon aides knew of the president’s thinking, and even fewer knew of his hidden agenda. Nixon wanted to create additional vacancies, and the Earl Warren Dinner was typical of the public misdirection that concealed his true plans. White House aide John Ehrlichman, then counsel to the president, reported in his memoir that “the Justice Department was hearing rumors [at this time] of Justice Abe Fortas’dealings with [convicted] financier Louis Wolfson. By May 1969, Life magazine had written an exposé of Fortas’ agreement with Wolfson, and Nixon cleared his desk of other work to focus on getting Fortas off the Court.”¹⁴ Ehrlichman didn’t say that it was the Department of Justice that was spreading rumors and leaking this information to Life reporter William Lambert.¹⁵ Ehrlichman had been given advance proofs of the Life story several days prior to its publication, scheduled for Sunday afternoon, May 4. The Justice Department had passed along the fact that, while sitting on the Supreme Court, Fortas had accepted a $20,000 retainer from Louis Wolfson, who was under investigation by the Securities and Exchange Commission (SEC).¹⁶ (He would later be indicted and convicted of fraud.) At the time of the investigation,Wolfson bragged that his friend Abe Fortas was going to help him.¹⁷

On May 1, three days before publication by Life, Assistant Attorney General William Rehnquist sent Attorney General Mitchell a memorandum providing a precedent for the Department of Justice to investigate the Fortas-Wolfson relationship. To date, this memo has not surfaced at the National Archives with other Department of Justice papers of the period.¹⁸ Nonetheless, the contents of the memo and the reason it was written by Rehnquist have been reported. Veteran Washington journalist and author Robert Shogan interviewed John Mitchell in 1971 while he was still attorney general, and Mitchell in turn (after waiving any attorney-client privilege with his constitutional lawyer) opened the door for an interview with Rehnquist. Although additional information has surfaced in the years since Shogan published A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court (1972), this book recorded Rehnquist’s crucial role.

Mitchell told Shogan, “We were struggling to find answers to what we should or shouldn’t do.”¹⁹ With good reason. For the Department of Justice, as an arm of the Executive Branch, to investigate or prosecute any federal judge, not to mention a Supreme Court justice, certainly raised fundamental legal issues, and the investigation of Fortas was uncharted. Article III of the Constitution provides: “The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior.” There is no express provision in the Constitution respecting removals, except for Article II, which provides for removal from office of “all civil officers of the United States” (including judges and justices) by impeachment. Alexander Hamilton wrote in The Federalist No. 79: “The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.” He added, “Nothing can contribute so much to firmness and independence [of the judicial branch] as permanency in office.” Of impeachment, Hamilton further noted: “This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.”

Mitchell did not need a constitutional lawyer to understand the limits on his investigative powers relating to Abe Fortas. According to Shogan, he learned (I suspect from Henry Petersen, who had the necessary institutional memory) that the Justice Department had always “been hesitant to seem to threaten the independence of the judiciary.”²⁰ Investigating a Supreme Court justice could place the Justice Department on thin ice, because the power of impeachment belonged exclusively to the Congress. It was for this reason that Mitchell turned to the “intellectual adroitness” of Rehnquist, a former Supreme Court law clerk, for help.²¹ Shogan reported the following:

(1) Rehnquist “took no part in the direct investigation” of Fortas, which was handled by Will Wilson and Henry Petersen of the criminal division. Rather, Rehnquist was asked, as he himself put it, “to assume the most damaging set of inferences about the case were true” and to “determine what action the Justice Department could take.”²²

This was a remarkable assignment. The Justice Department was deciding how to deal with one of the nine highest judicial officials of the nation; whether and how to cross the constitutional divide of a judicial independence. Presumably Rehnquist was to make certain the Department of Justice acted in a constitutional manner. Yet he was told to ignore the facts and assume the worst and most damaging inferences. Common sense — and careful legal analysis — would demand facts, not inferences. The only thing more surprising is that he took the assignment. This is Alice in Wonderland, not legal analysis.

(2) The worst inference Rehnquist could draw was that Fortas, while sitting on the Supreme Court, had somehow intervened in the government’s prosecution of Wolfson’s stock market activities. (In fact he had not.) Based on this (false) inference, Rehnquist searched the federal criminal code, and found one provision that “seemed to cover the Fortas-Wolfson relationship, as Rehnquist understood it.” It was a statute that made it a crime for “officers of the judicial branch” to be rewarded “for services rendered on behalf of another person before a Government department or agency in relation to any particular matter in which the United States is a party.”²³ Shogan notes, “Just what services Fortas had been expected to render in return remained to be established, but this was not Rehnquist’s responsibility.”

(3) Having found a possibly relevant federal criminal law, “Rehnquist next sought to determine whether the Justice Department could prosecute Fortas for violating that law while he remained on the Court.” Rehnquist found no precedents that “fit the present case exactly.” But he did find that “in 1790 the First Congress, which included among its members James Madison and other drafters of the Constitution, had passed a law making it possible to prosecute Federal judges for bribery.” In addition, Rehnquist found that six years later (1796), the third attorney general of the United States had “held that a judge could be called to account for unlawful behavior by criminal indictment as well as by impeachment.” Shogan reports that “Rehnquist believed that Attorney General Lee’s conclusion was well grounded enough for Attorney General Mitchell to follow some 170 years later. On May 1 Rehnquist sent Mitchell a memorandum advising him that if the department had the evidence, it could prosecute Justice Fortas.”²⁴

Shogan had no reason to examine the basis of Rehnquist’s advice, but it is easy to do so. Most striking is what Rehnquist apparently did not tell Mitchell: The 1790 bribery law was not necessarily designed to prosecute judges while in office; rather it provides a remedy after they had been removed by impeachment. The language and history of the Constitution clearly suggest that Congress, not the Executive Branch, is responsible for policing “good behavior” of Supreme Court justices.

Nonetheless, Rehnquist’s advice gave Mitchell the solace and authority he needed. Mitchell was just getting warmed up. Before the Life story hit the streets he had his press man, Jack C. Landau, obtain a copy of the magazine. (Landau sent a U.S. marshal to New York to pick it up.) Shortly before publication Jack Landau was working his Rolodex, frantically calling reporters who covered the Justice Department and the Supreme Court to give them a heads-up on the coming story. As Shogan observed, this action “put the Justice Department in the dubious position of promoting Life’s exposé.”²⁵

The Life story was front-page news. Mitchell, proud of his handiwork, boasted of it at a White House staff meeting on Tuesday, May 6 (before meeting with the Republican leadership), and revealed his further plans for the high court. These were duly noted by presidential aide Patrick Buchanan, who dashed off a memo to the president reporting that the “Attorney General has hinted this morning that this scandal is only a part of what may soon be reve...

Table of contents

• Cover
• Colophon
• Also By
• Title Page
• Copyright
• Acknowledgments
• Contents
• Cast of Characters
• Note to the Reader
• 1.  Introduction: The Backstory
• PART ONE
• 2.  The Games Begin (September 17, 1971)
• 3.  Priority One: A Southerner (September 18)
• 4.  The Push for Poff (September 20)
• 5.  Priority Two: Two Conservatives (September 23–28)
• 6.  Poff Goes Poof (September 29–October 2)
• PART TWO
• 7.  Testing How Byrd Might Fly (October 2–11, 1971)
• 8.  Going with Friday and Lillie (October 12–14)
• 9.  The Chief Justice and Other Problems (October 14–18)
• PART THREE
• 10.  Powell and Baker (October 19, 1971)
• 11.  While Howard Baker Dithered (October 20)
• 12.  The Rehnquist Choice (October 21)
• 13.  Afterword
• Chronology
• Notes
• Bibliography