June 15, 2017
In September 1971, U.S. President Richard Nixon had the unprecedented opportunity to reshape the U.S. Supreme Court. The autumn retirements of Justices Hugo Black and John Harlan marked the third and fourth vacancies since Nixon assumed the presidency in 1969.
Nixon's immediate desire was to tailor the appointments to his immediate political needs by naming an ethnic Catholic and a "strict constructionist" Southerner. He outlined the first goal in this conversation with Attorney General John Mitchell, and the second goal in this conversation which immediately followed with Secretary of State William Rogers.
Virginia congressman Richard Poff was a typical product of the Virginia Byrd machine: he had signed the Southern Manifesto, which denounced the Brown decision, and then had voted against both the Civil Rights Act of 1964 and the Voting Rights Act of 1965. His nomination thus threatened to restart the battles over Clement Haynsworth and G. Harrold Carswell from the previous year. In this conversation
with aide Pat Buchanan, the President made clear that he welcomed the challenge.
But, just as he cemented his status as a frontrunner for the Court, Poff suddenly withdrew from contention. He told John Dean that he feared a Democratic filibuster against his nomination. He also worried that the publicity from a nomination would reveal that his 12-year-old son had been adopted. (The congressman and his wife hadn't told the boy.)
After Poff's recusal, the administration searched for other candidates to fulfill the President's desire to name a Southerner. One possibility was Hershel Friday, an Arkansas attorney whose law firm had represented Little Rock in its unsuccessful attempt to block federally mandated desegregation of the city's public schools. Another possibility was even more likely to split the Senate Democratic caucus: West Virginia senator Robert Byrd, a former member of the KKK who, like Poff, had opposed both the Civil Rights Act and the Voting Rights Act.
Nixon had another, self-inflicted, problem: his press secretary, Ron Ziegler, had stated that the President was looking for the "best man" for the vacancy. The outcry from feminists—a constituency courted by the administration, for political reasons—led the President to demand that his vetters come up with a possible female nominee (even though Nixon privately had no desire to appoint a woman to the Court). The Justice Department eventually focused on a California appeals court judge, Mildred Lillie, who, though a registered Democrat, had a strongly conservative (if less than distinguished) record.
The President surveyed the political situation surrounding the appointments with advisor Pat Buchanan, in these excerpts from an Oval Office conversation.
According to custom, the American Bar Association rated all nominations for the Supreme Court, with rankings of well-qualified, qualified, and not qualified. The administration gave two names—Lillie and Friday—to the ABA for consideration. Attorney General Mitchell provided the President with the results of the ABA vetting process. As Nixon made clear in his reaction to the news about the unqualified ranking for Lillie, he had never been serious about wanting to appoint a woman to the Court. But the ABA move got him off the hook politically, by allowing him to blame the Bar rather than his own sexism for his decision to appoint two males.
With Lillie and Friday eliminated, and Byrd a non-starter, Nixon quickly settled on Virginian Lewis Powell, former president of the ABA—who he expected would be a reliably conservative vote. For the second vacancy, he continued to push the idea of naming a Catholic, settling on New York Judge William Mulligan, former dean of the Fordham Law School. Mitchell was cool on Mulligan, however, because he considered him a mediocre jurist—a line of attack that administration opponents had used, to devastating effect, in torpedoing the nomination of G. Harrold Carswell the previous year.
A bit later, the President and the Attorney General continued their discussion of the ramifications from the ABA's actions. Nixon made clear that he wanted to obtain maximum public relations benefit from the ABA's rejection of Lillie.
As momentum built toward announcing both selections, Mulligan's chances faded, and Nixon started focusing on Tennessee senator Howard Baker. But Dick Moore, special counsel to the President, pushed the idea of Assistant Attorney General William Rehnquist, a former aide to Barry Goldwater and a figure known for both his legal brilliance and his extremely conservative views.
After the Moore conversation, the President returned to Mitchell, intrigued about the Rehnquist possibility. (But, he lamented losing the opportunity to name a Catholic—both Baker and Rehnquist, the two finalists for the position, were Protestants.) Baker, meanwhile, was in Tennessee, having given no firm answer to the President's offer.
Finally, Nixon decided on Rehnquist—though not after Mitchell reported that Baker, in a last-minute decision, had finally concluded that he wanted the appointment.
This content is courtesy of lawyer and author Jim Robenalt's interviews and work with John Dean, Nixon's White House Counsel and the author of The Rehnquist Choice.