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Thursday, Nov. 01, 2001

Former White House counsel and FindLaw columnist John Dean has recently published his third book, The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court (Free Press 2001).

Like Dean's acclaimed prior works, Blind Ambition and Lost Honor, The Rehnquist Choice deals with the Nixon years — but with a twist. This time, Dean focuses one of Richard Nixon's most important non-Watergate-related decisions: the appointment of Supreme Court Justice William Rehnquist.

The Rehnquist Choice — a revealing, intriguing, and surprising narrative of the selection process — is enriched by source material including Dean's own White House files from the National Archives, as well as Nixon White House materials including tapes only recently made available.

Among other revelations, Dean chronicles Rehnquist's involvement, prior to his nomination, in Nixon's attempt — successful in the case of Abe Fortas — to remove liberal Supreme Court Justices. Dean also makes a persuasive case that Rehnquist was disingenuous in his explanation of a controversial memo that he wrote as a law clerk to Justice Jackson — endorsing the "separate but equal" doctrine and thus opposing the seminal desegregation decision Brown v. Board of Education.

In addition, Dean offers tantalizing portraits of the nominees who might have been — including California Court of Appeals Justice Mildred L. Lillie, who would have preceded Sandra Day O'Connor as the Supreme Court's first woman justice had Nixon taken his wife Pat's advice and nominated her. Finally, Dean confesses (with some regrets) his own role in bringing Rehnquist's name to the fore in the nomination process.

Here, we bring you an interview with Mr. Dean, who responded to a series of written questions posed by his fellow FindLaw columnist and editor Julie Hilden.

Q: What lessons can we learn for future Supreme Court nomination and confirmations from the Rehnquist process, of which your book gives such a disturbing account? What process would you advise the Bush Administration to follow? And what should Senators, and citizens, evaluating a nominee focus on?

A:Implicit in your question is a recognition of the fact that I deliberately avoided drawing lessons, or really adding any commentary, when writing The Rehnquist Choice. Rather I told a story, based on my own knowledge and the unique source material I had with the recently released Nixon tapes. Based on conversations with those involved in the Justice selection process that both preceded and succeeded me, the way Nixon selected Justices was not much different from any other president. Presidents who are lawyers tend to be more involved than non-lawyers are. For example, President G. H. W. Bush was only incidentally involved, while President Clinton was deeply involved.

But the clearest lesson I believe is that it is essential that a candidate be carefully vetted. As readers discover in my book, Nixon really didn't have a clue about the men he selected, only general information and recommendations. Proper vetting does much more than tell the president about the man — or woman — he is nominating. It prepares the nominee for his or her confirmation process. Had William Rehnquist been properly vetted the problems that attended both his 1971 and 1986 confirmation hearings (the latter for the position of Chief Justice) would most likely never have occurred.

When a nominee is vetted by the White House counsel's office, or Justice Department officials, his or her background, and in particular the potentially controversial areas, are examined in great detail. As a result, the nominee is well prepared to honestly answer questions during the Senate confirmation hearing. Thus, if my book has any lesson it is the fundamental essential that all high court nominees be well-vetted. This is the advice I would give the Bush Administration, or any administration.

As for your question about what the Senate, and the public, should focus on, the answer is simple: the nominee's judicial philosophy. Presumably a president will not nominate a person who is not qualified to sit on the Court. Should a president be so foolish as to do so — as Nixon did with Harrold Carswell — that fact becomes apparent rather quickly. If the members of the bar don't raise it, rest assured either the Senate or an alert media will dig it out quickly.

Many members of the Senate have, in the past, been reluctant to directly reject nominees because of their judicial philosophy. So they find another pretext to vote against the nominee. I cite the example of Judge Clement Haynsworth, who was perfectly qualified to sit on the high Court, and could have been a great Justice, but he was rejected because of his perceived views on civil rights. Rather than rejecting him for this reason, however, the Senate turned him down because of an alleged insensitivity to conflicts of interest. It was a phony excuse, not to mention an unjustified reason.

Today the entire federal judiciary has become politicized. Both parties want to place judges on the courts that reflect their political views. This is a serious problem, for Americans are fast losing faith in the impartiality of the Judicial Branch — and not without good reason. The primary function of our federal courts is to resolve disputes between citizens and the political branches of government. But partisans on both sides of the political divide want to use the courts — from the Supreme Court on down — as another political branch, a means to impose a political solution while resolving the dispute. If anyone doubts this is the case, I suggest they look at Bush v. Gore. A few more cases like that and the Courts will lose all credibility.

The reason the Senate should look at a nominee's philosophy is that it is time to reject nominees who are political ideologues, men or women who hold such fixed views that their votes on the high Court are predictable, whether they lean left or right. It is time to get all courts out of politics. Let the political branches make the political decisions. Given the rules of the Senate, if a few members of the Senate insisted that all judicial nominees be non-political or else vowed to block the nomination with a filibuster, thus requiring a super-majority to place any political nominee on the Court, it would end the practice of selecting Justices for their ideology rather than their legal acumen and wisdom. But this not likely to happen. There are not a lot of profiles in political courage in the Senate today.

Q:If we had ended up with a Justice other than Rehnquist — such as one of the nominees you mention in the book — how do you think the Supreme Court as a whole would have been different? I am assuming that the alternative Justice would be conservative, but not as "radical" a conservative as you describe Rehnquist as being.

A:The "what if" questions are difficult, but fun. The person that Rehnquist really replaced in Nixon's selection process was California appellate Justice (as they are called) Mildred Lillie, who is still on the court in California. I believed in 1971, as I do today, that Justice Lillie should have been on the Supreme Court. As I report in the book, President Nixon was certainly prepared to select her because he wanted the political first of placing a woman on the Supreme Court. It was the American Bar Association that blocked her selection, although they said she was the most qualified female judge in the country to sit on the high Court. In essence, they found no woman was qualified. That was pure male chauvinistic baloney.

Had Justice Lillie been nominated and confirmed in 1971, I think we would have had more women on the Court and sooner. In fact, from my point of view, we still don't have enough women on the high Court, or lower courts. I think women make wonderful judges, and the Judicial Branch would be greatly enhanced by giving women an equal number, if not a majority, of the judgeships.

Q:One of the most interesting revelations in the book is the number of serious strikes Rehnquist would have had against him as a nominee, if only they had been known. You take issue, for example, with Rehnquist's advice to Nixon about "unpacking" the Supreme Court — that is, forcing out liberal Justices. You also take issue with what you believe was Rehnquist's lying, and ultimately perjury, about a memo he wrote as a law clerk to Justice Jackson supporting the "separate but equal" doctrine and thus opposing Brown v. Board of Education. With respect to "unpacking" the Court, where would you draw the line between activities that are simply political hardball, and those that rise to the level of being a Constitutional violation that a White House counsel should advise against and, if his advice is not followed, resign over?

A:I must qualify your reading of the book. While I believe the Chief Justice lied, I cannot say he committed perjury, nor can I say he did not. Not all lies are perjurious, and I made no effort to determine if he had committed perjury. I write that his statements were at best case false and worse case perjurious. What I did conclude is that he had lied. And I discovered that several academics who have studied the record have reached the same conclusion.

But your question is directed at Rehnquist's involvement in Nixon's scheme to "unpack" the Court. Unfortunately, the documents relating to the efforts to remove Justices by the Nixon Administration have not made it to the National Archives. I am in the process of filing a Freedom of Information Act request for this material because I only have bits and pieces. As you know from the book, I reported to White House chief of staff my concern about Rehnquist's involvement in these efforts to unpack the Court but I didn't have the full story then, nor do I have it today. In short, I was not confronted with the moral dilemma inherent in your question.

That problem would occur for me with Watergate, when it was clear we were involved in obstructing Justice and I tried to extricate the president — with my infamous cancer on the presidency warning to Nixon — only to discover that he not only did not want to get out of the problem, he was the problem. To deal with that situation I simply told the president and my colleagues that I was going to the prosecutors and would not lie — an action that made me an instant pariah at the White House and Richard Nixon's (as well as his supporters) number one enemy for eternity.

For a White House employee to resign in protest has little or no impact. As Nixon said in one of his conversations on that very subject, on October 15, 1971: "We hear it around here all the time too, [from the] White House staff. Well I'll resign unless you do this or that. Well that's all fine. I say fine, resign. So they'll resign and that's fine, and they'll be heroes for awhile and then forgotten. That's the way it works." In short, with Nixon it would have made no difference. And I suspect that is the case with most presidents.

Q:To turn the tables for a moment, liberals now would certainly like to get Rehnquist off the Court. Would it be a Constitutional violation to someday try to impeach him based upon alleged perjury about the Jackson memo — or would it simply be political hardball to do so? Does the fact that the memo did come up in the confirmation process, but Rehnquist was confirmed anyway, and confirmed for Chief Justice, mean the memo cannot be raised again as grounds for impeachment? What about those who believe Clarence Thomas lied about the Anita Hill allegations? If further evidence on that question came up now, might impeachment be proper?

A:Given the fact that many in the Senate voted against Rehnquist's confirmation to be Chief Justice in 1986 because they believed he had lied, while others were unconcerned, I doubt you could ever convict him in the Senate. More importantly, since the Republicans control the House, you could never get a bill of impeachment out of a committee or on to the House floor. Even if the Democrats were to take control of the Congress after the mid-term 2002 election, the question is likely to be moot. The Chief Justice is 76 years of age, and rumors are that he is seriously considering retirement.

Frankly, I doubt if the Democrats would launch an impeachment proceeding against either Rehnquist or Thomas for lying during their confirmation hearings. It would be highly divisive, and I am not sure it is an impeachable offense since it had nothing to do with their conduct in office, rather how they got that office.

Q:The way Nixon went after Fortas and Douglas reminds me of the Starr investigation recently — in the sense that I would describe both as deadly serious interparty fighting to the fullest extent of, and perhaps beyond, legal rules. Do you think the comparison is accurate? What about a comparison to the tactics in the Watergate break-in? Do all these activities come from the same strategy or mindset?

Q:Do you think the "Jackson memo" alone would have been a good reason not to confirm Rehnquist — or is Rehnquist's disingenuousness about the memo the only factor that suggests to you he should not have been confirmed? Does it matter that Rehnquist wrote the memo as a law clerk, rather than, say, a White House counsel — so that we should not fault Rehnquist as much for the memo as we might fault him for his role in the Court "unpacking" scheme?

A:If Rehnquist had owned up to the Jackson memo, explained that he had in 1953 believed that Plessy's "separate but equal" was the law, and could only be changed by Congress not the Court, and gone on to explain that he had since changed his mind — it would have been no problem. A strong intellectual argument can be made for the position he took in the Jackson memo. Typically, Rehnquist is more attracted to intellectual positions than political positions — although his consistent conservatism can also be viewed as political.

The problem raised by the Jackson memo was the lack of candor in explaining in passing it off as Justice Jackson's thinking rather than his own, when clearly it was his own thinking. For me, Rehnquist's involvement in the Fortas matter was and is a much more serious a problem. Certainly, he had to know that his legal advice to the Department of Justice saying they had authority to investigate Fortas was thin, if not non-existent. Rehnquist knew what Attorney General Mitchell wanted, and gave him a dubious legal opinion that gave him political cover. The one ancient precedent Rehnquist relied on for purported authority for the criminal investigation of Fortas was based on investigating an Article I judge (created by Congress for the Northwest Territory) and not an Article III judge, or Justice (created by the Constitution). There was no precedent for such an investigation by the Justice Department of a sitting Justice. The Constitution says that impeachment is the only way to address misconduct of Article III judges and Justices, and that clearly appears to be what the founding fathers had in mind if one reads the Federalist Papers and the debates of the Constitutional Convention.

Just as Rehnquist invented law for Bush v. Gore, in 1970 he invented law for the Justice Department to investigate Justice Fortas, and bluff him out of his life tenured seat. Had Rehnquist involvement been investigated during his confirmation hearings, I doubt he would have been confirmed. But none of us will have that answer until the key documents are obtained from the Justice Department files — assuming they still exist.

Q:The book refers to a document in which Rehnquist defines or describes a "strict constructionist." Given the fact that President George Bush said that was what he would appoint to the Court during the 2000 presidential campaign, let me ask as a final question what you think of Rehnquist's explanation of what a strict constructionist is.

A:It is the most honest definition or description of a strict constructionist I have ever seen, and given the fact it was provided by the Chief Justice of the United States, a jurist who considers himself a strict constuctionist, I don't believe anyone can ignore it. However, I think that if the president ever appoints a strict constuctionist as defined by Rehnquist, he should be tarred and feathered by the media. And I think anyone who is aware of the Chief Justice's explanation and who has any sense of decency would agree.

The Rehnquist definition was in a memo he sent to the White House when he was an Assistant Attorney General in charge of the Office of Legal Counsel and was vetting Judge Clement Haynsworth. It is quite remarkable, but he asserts that a strict constructionist judge is one who favors criminal prosecutors over criminal defendants, and civil rights defendants over civil rights plaintiffs. It is, for me, a description of a person who should be automatically disqualified from sitting on any court. Under Rehnquist definition a strict constructionist is obviously a biased judge as well.

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