OUT OF LEFT FIELD
JUSTICE WILLIAM REHNQUIST
...Did the G.O.P. pull a fast one?
A Supreme Court Flim Flam
From the Republican Past
By STAN ISAACS
So the Republicans are sore that the Supreme Court-bound Sonia Sotomayor didnt tell them what she really thought in the recent hearings. Tut, tut. For a real case of a judicial flim-flam we can go back to the 1971 hearings that allowed William Rehnquist to slide into a Supreme Court post.
A too-little noticed 2001 book, The Rehnquist Choice, by John Dean, the former President Richard Nixon legal aide who eventually turned on Nixon, laid out an intriguing case of a man hiding his real feelings enough to go on to become a dominant figure on the Court.
In 1971, when Nixon had two Court openings, he rode herd on his people in a comedy of errors trying to fill the openings.
First there was Clement Haynesworth, done in by conflict of interest charges. Then, G. Harrold Carswell, another Southerner. He may have been one of the worst nomineess ever. He was a racist, and imagine the shock to the Nixon team when Carswell later was arrested for propositioning a vice squad officer in the mens room of a Tallahassee shopping mall.
In his pursuit of the right conservatives, Nixon pondered a Coxey armys list of names: Spiro Agnew, Alexander Bickel, Richard Poff, William French Smith, Arlen Specter and Caspar Weinberger among others. .
He seriously considered Senator Robert Byrd of West Virginia because he thought liberals would choke at the idea of the pompous, onetime Ku Klux Klan member joining the Court. He eventually sent six names to the American Bar Association for review, most serious about Arkansas lawyer Herschel Friday and California judge Mildred Lillie.
Rehnquist was one of those along with attorney general John Mitchell, White House aides John Ehrlichman and Bob Haldeman--and Dean-- seeking a worthy nominee. When it became obvious that the bar associations low opinion of Lillie and Friday would doom their candidacies, the Nixon strategists settled on Lewis Powell, who would be confirmed in short order, and Senator Howard Baker.
In the face of the early frustration, Dean almost flippantly threw the name of Rehnquist into the hopper. Then, when Baker was dithering about accepting the nomination because of financial concerns, Nixon took closer looks at Rehnquist.
The first time Nixon saw the colorfully-dressed Rehnquist, he said, Who the hell is that clown? Dean said, Rehnquist was wearing a pink shirt that clashed with an awful psychedelic necktie. And Nixon said, Thats a hell of a costume hes wearing.
But the more Nixon studied Rehnquists reactionary views on major issues like civil rights, business and crime, he warmed to him. When Baker finally said he would accept, it was too late; Nixon had settled on Rehnquist.
The crux of Rehnquists success at winning the nomination was his claim of attorney-client privilege. That did not allow the Senate access to information about his activities and pronounced reactionary leanings as Assistant Attorney General at the Justice Department.
First off, the Democrats would have been concerned about a short memo by Rehnquist that Dean called a brushing aside of the First Amendment of the Constitution. If Senate Democrats had seen [Rehnquists memo on this issue] they would have grilled Rehnquist over it, he wrote.
More significantly, in 1969 Rehnquist wrote a 19-page memo that Dean called a brutal critique of how the Supreme Court had gone astray in the field of criminal law, and it clearly signaled Rehnquists reactionary thinking on a wide range of controversial Supreme Court cases. It could have launched the debate that was later visited on Judge Robert Borks [failed] nomination.
Rehnquist kept this memo locked up for many years. Had it been unearthed, it would have exposed a right-wing nominee of the Bork stripe summarizing dozens of Warren Court decisions, including such sacred cows as Gideon vs. Wainwright (guaranteeing a lawyer to all defendants) and the Miranda decision.
Had this been public, it would have been fatal for Rehnquist to get confirmation from a Senate that favored the Democrats, 58-42.
An issue that did surface were the reports that Rehnquist had challenged black and Hispanic voters at the polls in Phoenix in 1968. Rehnquist denied it and the matter was dropped. It was only in 1986, when Rehnquist faced confirmation on his promotion to Chief Justice that the Democrats actively pursued the question of Rehnquists veracity. They introduced 14 witnesses who attested to Rehnquist challenging voters. To no avail
Also in 1971 was a memorandum Rehnquist wrote as a law clerk for Justice Robert Jackson in which he advised Jackson to reaffirm the rule of separate but equal of the (infamous) Plessey vs. Ferguson decision. Indiana Senator Birch Bayh charged that Rehnquist had urged Jackson in this memo to vote against the Brown vs. Board of Education landmark civil rights case.
A key sentence in the memorandum read: I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by liberal colleagues, but I think Plessy vs. Ferguson was right and should be re-affirmed.
Rehnquist claimed he was only preparing a statement that incorporated all views for Judge Jackson to consider. It stunned observers that anybody would buy the argument that Jackson would have been excoriated by liberal colleagues on this issue. Mrs. Elsie Douglas, Jacksons longtime secretary, charged that Rehnquist had smeared the reputation of a great justice by attributing his pro-segregation views to Jackson.
Four Democratic Senator naysayers, Ted Kennedy, Birch Bayh, Phillip Hart and John Tunney were outvoted 12-4 in the 1971 Senate Judiciary hearings. The full Senate then voted 68-26 in favor of Rehnquist. The southern Democrats okayed Rehnquist. Liberal/moderate Democrats Clayborne Pell, John Pastore, Thomas Eagleton, Stuart Symington, William Proxmire and Mike Gravel among others, probably tired of the issue and defensive in the wake of having turned down Haynesworth and Carswell, gave Rehnquist a pass.
By 1986 the Democrats had a more jaundiced view of Rehnquists honesty. It is not unlikely that if the Democrats had been more determined challenging Rehnquist in 1971 when they had a 58-42 majority, they would have persuaded the moderates and some southerners to vote against him. They had no chance to beat him in the 1986 hearings when the Republicans had a 53-47 majority.
Rehnquist went on to be just the kind of reactionary justice Nixon wanted. Bob Woodward and Scott Armstrong, in wrote in He almost always voted with the prosecution in criminal cases, with business in antitrust cases, with employers in labor cases and with the government in free speech cases.
He was the instrumental figure in turning the Court around, in watering down some of the decisions of the Warren Court. Would it have happened so starkly if the relatively moderate Republican Howard Baker had not dithered and been accepted by Nixon? That is a what-might-have been.
Finally, there was Deans mea culpa. I have some regrets about my role in the story, he wrote. I have decided that the least I can do is tell it.
©2009 by Stan Isaacs. The Stan Isaacs caricature is ©2001 by Jim Hummel. This column first posted July 27, 2009.
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