Book Review

You Be The Judge:
The Rehnquist Choice
by John W. Dean
(Free Press, 2001)

reviewed by Richard A. Forsten, Esquire

"Do not scheme to be appointed judge, in case you are not strong enough to stamp out injustice"Ecclesiasticus 7:6

The first rule about selecting judges is simple: there are no rules. Af- ter that, all you need is Senate confirmation. In The Rehnquist Choice, The Untold Story of the Nixon Appointment that Redefined the Supreme Court, former White House Counsel John Dean tells the behind the scenes story of Richard Nixon's decision to name William Rehnquist to the Supreme Court. Far from a careful, methodical process, the nomination process leading to Rehnquist and Lewis Powell (who was nominated at the same time) was haphazard at best. Nevertheless, it makes for a fascinating (and fast reading) story, made all the more so by Dean's extensive use of quotations from recently released White House tapes.

President Nixon made four appointments to the Supreme Court, in a set of pairs. Chief Justice Warren Burger and Justice Harry Blackmun were nominated first, in 1969. Before telling the story of the "Rehnquist choice," Dean begins with a brief back story on the 1969 nominations. In particular, before nominating Blackmun, Nixon's two prior nominations, Clement Haynsworth and G. Harrold Carswell, were rejected by the Senate. When the time came for future nominations, the White House did not want any trouble.

In September, 1971, Justices Hugo Black and John Harlan resigned from the Court due to ill health. President Nixon was thus presented with the opportunity to name two more members to the Court, virtually remaking the Court over a two- year span. During the next five weeks, numerous persons were considered and rejected (or took themselves out of the running) for various reasons, and Dean's book follows the twists and turns of the rollercoaster selection process that ultimately led to Rehnquist and Powell.

The White House's first choice was Virginia Congressman Richard Poff. But although Poff was the frontrunner, he later took himself out of the process. Other names that were considered included William French Smith, Caspar Weinberger and Arlen Specter. There was even consideration of West Virginia Senator Robert Byrd. Only a week or so before sending the nominations to the Senate, the President had all but decided on Herschel Friday, an Arkansas bond lawyer, and California Court of Appeals Judge Mildred Lillie (Nixon was aiming to name the first woman to the Supreme Court). But within days, problems had arisen with both potential nominees and they would not be nominated.
Ultimately, the White House settled on Powell and Senator Howard Baker. Powell was reluctant, but was persuaded to accept. Baker dithered, and while he did so, the nomination slipped away and went instead to William Rehnquist. At the time, Rehnquist worked at the Justice Department and headed up the Office of Legal Counsel. Ironically enough, his job during the nominee search process was to review potential nominees to the Court and to make recommendations. Prior to being told he was going to be a nominated, he had no idea he was even being considered. Dean takes credit for first putting Rehnquist's name "in play" (by suggesting Rehnquist to Richard Moore, the special counsel to the President; Moore, in turn, pushed Rehnquist as a possibility to the President). After a hectic and sometimes chaotic five-week search period, Nixon had his nominees. He went on television and made his public announcement, praising both men. Powell and Rehnquist were confirmed, and the rest, as they say, is history.

The inside story behind the nomination process is compellingly told and a great read. The extensive use of the tapes Nixon made brings an immediacy to the process and really makes the reader feel as if he (or she) is present in the room as the conversations took place. At the same time, though, the story reminds one of Bismarck's famous statement that anyone who likes legislation or sausage should watch neither one being made. Whatever one thinks of Rehnquist and Powell, the process itself (or the lack thereof) seems somewhat disappointing or disillusioning.

Return to September 2002 Table of Contents.