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“The Rehnquist Choice” by John W. Dean The Free Press; 333 pages; $26 A reading of John W. Dean’s eye-opening “The Rehnquist Choice” suggests that Otto von Bismarck’s chestnut about how “no man should see how laws or sausages are made” can also be applied to the presidential selection of a Supreme Court nominee — at least as that process unfolded in Richard Nixon’s White House. Taking full advantage of the 420 hours of Nixon-taped White House conversations released for public consumption a year ago by the National Archives and Records Administration and the numerous White House files in the NARA’s possession, Dean has produced an informative account of the events leading to then-President Nixon’s October 1971 nomination of William Rehnquist to the Supreme Court. The picture Dean paints is not particularly pretty, but it’s pretty entertaining. “The Rehnquist Choice” is Dean’s detailed chronicle of the 34 days between Justice Hugo Black’s resignation from the Supreme Court on Sept. 17, 1971, and Nixon’s Oct. 21 announcement that he was tapping Lewis Powell Jr. and Rehnquist for the Court. Nixon had two nominations to make because not a week after Black announced his departure from the Court, Justice John M. Harlan resigned as well. “I have some regrets about my role in this story,” Dean admits in a note to the reader. Dean’s role was, of course, as Nixon’s White House counsel, where he not only enjoyed an insider’s view of the goings-on, but also was an active participant. Nixon often dispatched Dean to interview the high court prospects suggested to the White House by Attorney General John Mitchell and Rehnquist, who was an assistant AG. At the time, Rehnquist had the task of vetting candidates for the Court by analyzing their rulings and judicial philosophies. On several occasions, Dean found potential justices who had earned high marks from Mitchell and Rehnquist to be wanting. But despite Dean’s doubts about Rehnquist’s judgment in such matters, it didn’t stop him from subsequently becoming the principal instigator behind Rehnquist’s nomination to the high court. As Dean tells it, Nixon was understandably elated in September 1971 with the opportunity to add two more justices to the couple he had already placed on the Supreme Court in 1969 and 1970. Nixon’s elation was tempered, however, by unhappy memories of two of his previous high court nominees who were torpedoed by a Senate controlled by Democrats. Clement Haynsworth Jr., a 4th Circuit judge from Greenville, S.C., and G. Harrold Carswell, a U.S. District judge in north Florida, had each been slated for the high court seat vacated by Abe Fortas and eventually filled by Harry Blackmun. Despite his success in placing the new chief justice, Warren Burger, in Earl Warren’s empty chair, and adding Blackmun to the Court, Nixon seethed in anger over his two failures. Convinced that the Senate and the legal establishment, represented by the judge-vetting crew on the American Bar Association’s Standing Committee on the Federal Judiciary, would resist approving someone from the South, Nixon intended to find a Southern nominee that the Senate couldn’t possibly refuse to OK without losing stature in the public’s eye. Nixon believed he had the right man in Rep. Richard Poff, R-Va. Although Poff’s conservative voting record on civil rights and voting rights bills was certain to raise the hackles of liberals, he had earned the support of many of his House colleagues, including such left-leaning legislators as Judiciary Chairman Emanuel Celler, D-N.Y. Poff withdrew from contention, however, after the press corps got wind that Nixon was leaning toward nominating him. Poff feared that increased scrutiny would eventually uncover a family secret he didn’t want divulged. One of Poff’s sons had been adopted at infancy, and he and his wife had yet to explain this to the boy and were unwilling to do so until the child was older. Poff’s unexpected withdrawal took the White House by surprise and triggered a disorderly search for a replacement nominee. By Dean’s count, about 35 names were floated in the subsequent quest for two justices. Nixon and his cohorts wanted to fill each vacancy with a relatively young “strict constructionist,” but beyond that they vacillated greatly on what kind of a nominee they were looking for. Political expediency was valued more than the nominee’s legal ability. Names were championed for hours or days, then discarded. On and on Nixon, Mitchell, Dean, and White House aides John Ehrlichman and Bob Haldeman debated whether to nominate a Jew, a Catholic, an Italian, a woman — often to the point of absurdity. When they learned that budget director Caspar Weinberger was not a Jew, they wondered if his name was Jewish-sounding enough to still earn credits with the Jewish lobby. From the welter, Powell and Rehnquist finally emerged as nominees to win confirmation in the Senate. I leave it to others wiser than myself to decide whether this episode in history resulted in comedy or tragedy. Joel Chineson is chief copy editor at Legal Times.

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