The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection of Supreme Court, and a Case Study—How Roe v. Wade Was Actually Decided
James D. Robenalt
Thompson Hine LLP
3900 Key Center 127 Public Square Cleveland, OH 44114 (216) 566-5755 [email protected] James D. Robenalt is a partner and former chair of the Business Litigation group at Thompson Hine LLP’s Cleveland office. Since 2000, he has won major trials and arbitrations in complex litigation involving over $161 million. He has also defended major construction cases, tax cases and professional malpractice cases. Jim has partnered with John W. Dean, Nixon’s White House counsel, to create a national continuing education program entitled “The Watergate CLE.” Mr. Robenalt is a member of the Advisory Board for the U.S. District Court, Northern District of Ohio. He is also an instructor for National Institute of Trial Advocacy. The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection of Supreme Court, and a Case Study—How Roe v. Wade Was Actually Decided Table of Contents I. Introduction...... 5 II. Manuscript...... 5 Exhibit A...... 7 Exhibit B...... 33
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 3
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection of Supreme Court, and a Case Study—How Roe v. Wade Was Actually Decided
I. Introduction The Nixon tapes provide an insider’s view of the ethics in the Supreme Court nominee selection pro- cess. Nixon’s legacy was his appointments to the Court: Burger, Blackmun, Powell and Rehnquist. Two would become Chief Justice and would dominate the Court for 36 years. Two, Blackmun and Powell, would fashion arguably one of the most significant opinions in the history of the Supreme Court—Roe v. Wade.
II. Manuscript Preamble to the Model Rules of Professional Responsibility: A Lawyer’s Responsibilities, Section 6 (“As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice sys- tem because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”) Justice David Souter, “What’s At Stake: Why Civics Matter To Me And To You,” Harvard Law School, 2012 address. https://journals.iupui.edu/index.php/civiclit/article/view/16876/17198. This one-hour course is a condensed version of a CLE that has been approved in several states. The topic is Nixon’s Court and a behind-the-scenes look at the decision in Roe v. Wade, one of the Court’s most controversial opinions and of current interest given the likely change in the composition of the Court under a Trump presidency. The Preamble to the Rules of Professional Responsibility provides that lawyers have ethical duties as public citizens to understand and cultivate knowledge of the law beyond its use for clients. Further, the rules support the concept of lawyers furthering the public’s knowledge, understanding and confidence in the law. Former Justice David Souter has taken these concepts to ground with his campaign to encourage a better understanding of how our government works and the history of some of our nation’s most important institutions and Constitutional decisions. Not only should lawyers themselves be more familiar with these precedents, but they should take responsibility to teach civics and our Constitutional values to citizens in their community to “further the public’s understanding of and confidence in the rule of law and the justice system.” The Nixon Court CLE accomplishes these goals in several ways. First, through Nixon tapes, it provides an insider’s look at the vetting process and the selection of Supreme Court candidates by the Executive under Article II. Nixon appointed 4 justices to the Supreme Court during his first term alone. Two of those appointees would serve as Chief Justice of the United States: Warren Burger and William Rehnquist. Together, these two Nixon appointees would dominate the Court for 36 year, showing that presidential appointments to the Court often serve as a president’s most important and long-last- ing legacy. Select transcripts are attached as Ex. A to this manuscript. Secondly, the course provides an look at the Supreme Court’s decision of Roe v Wade through the eyes of one of the law clerks at the time: Larry Hammond. Hammond served as Justice Powell’s law clerk and
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 5 was single-handedly responsible for convincing Powell to suggest to the Court the “viability” standard that is the hallmark of Roe. His bench memo is attached as Ex. B to this manuscript. The purpose of this one-hour course is to deepen the lawyer’s understanding of the interaction between the Executive Branch and the Judicial Branch when it comes to Supreme Court selections. Further, it is to provide a better understanding and working knowledge of Roe v Wade, a decision that is likely to be challenged during a Trump presidency and subject to much public debate. Finally, the hope, as Justice Souter suggests, is that lawyers, as guardians of our Constitution, will make it their business to teach and instruct in their communities about our Constitutional values which define us as a nation.
6 ■ Toxic Torts and Environmental Law ■ March 2017 Exhibit A Exhibit A The autumn 1971 retirements, for health reasons, of Justices Hugo Black and John Harlan marked the third and fourth vacancies since Richard Nixon assumed the presidency in 1969, giving him an unprecedented opportunity to reshape the Supreme Court. 1. September 17, 1971
Time: 4:28-4:32 PM
Telephone
Richard Nixon and Chief Justice Warren Burger [WEB]
[Tape No. 9-63]
RN: Hello.
WEB: Hello, Mr. President.
RN: Hi Warren, how are you?
WEB: How are you?
RN: Fine. I, uh, (clears throat), I understand the letter is here and that therefore it will be out. Uh, let me ask you on personal basis, because I don’t know how to quite, how to handle this, as to whether you think that perhaps, uh, uh, that uh, we ought to consider uh, uh, getting a dinner for him or something like that. What’s your feeling?
WEB: Well, it will be quite before he can…
RN: Could do it.
WEB: … be present, yes. He’s very sick man, Mr. President.
RN: I didn’t know that.
WEB: Yeah.
RN: Where is he, in the hospital, or…?
WEB: He’s in uh, he’s in...
RN: I see.
WEB: … the naval hospital.
RN: Uh huh. 1 The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 7 WEB: I suggested to John yesterday, he probably hasn’t gotten the message to you…
RN: Oh. I’ve been, uh, meeting with legislative leaders today.
WEB: I have, uh, just a note in general. This was before this had crystallized…
RN: Yeah.
WEB: This letter was actually written about three weeks and it’s been in…
RN: Ah yeah.
WEB: … his drawer, waiting for a date.
RN: Um humm.
WEB: And, uh, I had…
RN: Does he take visitors?
WEB: No.
RN: No visitors, huh.
WEB: I haven’t been able to see him for ten days.
RN: Well, then better, uh, my goodness and I. I’ll drop a little handwritten note to him.
WEB: I think that’d be nice. Now you know John Harlan has been in now for five weeks.
RN: I’ve heard that. But I, I just assumed that was the eye trouble again.
WEB: Well, no, no. It’s something much more serious.
RN: Oh, God.
WEB: Much more serious…
RN: That’s too bad.
WEB: He has moved out of the naval hospital yesterday and moved to George Washington.
RN: Umm.
WEB: Uh, just in frustration, his own frustration, although he is the most uncomplaining man I hink I have ever known in my life.
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8 ■ Toxic Torts and Environmental Law ■ March 2017 RN: Um humm.
WEB: He’s had more grief and problems than one man should bear.
RN: Um humm, um humm.
WEB: I, I’ve, I’ve told John Mitchell, I, I have the, my own judgement is that John will not be back here.
RN: Yeah. Uh, now he can, uh, I’ll write a note to him, I suppose.
WEB: Yes, I think that’d be nice…
RN: But as far as Black, a note is the thing to do.
WEB: Yes, I think so.
RN: But he can, he can get that okay.
WEB: It would be the naval hospital and John Harlan is at George Washington.
RN: Sure, sure. I’ll just have it personally delivered so they’ll find out.
WEB: Yeah.
RN: All right, fine, fine. fine.
WEB: And I, I told John when I talked to him yesterday and again this morning, that my jugement on the announcement thing was the longer you could keep it, uh, right within your own bosom, the more you keep your options open.
RN: Yeah.
WEB: They’ll be rumors of course, you can’t avoid it.
RN: Oh, you mean the announcement with regard to the retirement?
WEB: Yeah.
RN: I think it’s going to be, it’s almost inevitable as its already over the, its already uh, been asked in the press core today. You know, they apparently got, they, they’ve been, they, they, they must be something on to it.
WEB: Well, they will be speculating almost every day.
RN: Yeah, yeah.
3
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 9 WEB: Yeah.
RN: And its, uh, uh. Let me say that, uh, on the successor thing and just as we had on the other bases, I will want to have a talk with you at the proper time.
WEB: And I’ll be available.
2. NIXON AND JOHN MITCHELL (SEPTEMBER 20, 1971)(TAPE 9-101)
PRESIDENT NIXON: Now, on the other thing, John, on the second one, if it comes: can I urge you to try to examine everything to see if you can find a Catholic—a good Catholic?
JOHN MITCHELL: You want another [Justice William] Brennan?
PRESIDENT NIXON: No, Christ no! That’s what I mean. I mean—
MITCHELL: You know, you went down—the Eisenhower administration went down that track before, you know . . .
PRESIDENT NIXON: And they got Brennan, I know. But you don’t have an honest Italian, do you?
MITCHELL: [Chuckles.] God, they’re awful hard to find.
PRESIDENT NIXON: A Pole?
MITCHELL: Uh...
PRESIDENT NIXON: No.
MITCHELL: [California attorney and future Reagan AG] William French Smith—he isn’t one, is he?
PRESIDENT NIXON: Oh, Christ, no. He’s a Protestant.
MITCHELL: WASP.
PRESIDENT NIXON: Rich and everything else.
MITCHELL: All right.
PRESIDENT NIXON: Well, take a look at the Catholics, will you?
[Break.]
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10 ■ Toxic Torts and Environmental Law ■ March 2017 MITCHELL: Do you think that’s a good line to take?
PRESIDENT NIXON: I do. Politically, we are going to gain a lot more from a Catholic. Look, the Protestants will just figure—if he’s a conservative, a Catholic conservative’s better than a Protestant conservative. We really need that—
MITCHELL: Well, they’re more engrained, I’m sure.
PRESIDENT NIXON: Yeah. The point is, it’ll mean more to the Catholics—that’s my point—than it will to the Protestants. The Protestants expect to have things. The Catholics don’t.
MITCHELL: When are you going to fill that Jewish seat on the Supreme Court?
PRESIDENT NIXON: Well, about . . . after I die. [Mitchell laughs.] You know and I know, there aren’t any.
MITCHELL: There are no conservatives, I’ll say that.
PRESIDENT NIXON: Never.
3. PRESIDENT NIXON AND PAT BUCHANAN (SEPTEMBER 22, 1971)(TAPE 9-112) http://kcjohnson.files.wordpress.com/2009/02/rn-buchanan-snmanifesto-09-112.mp3
PRESIDENT NIXON: On the Poff thing, as you are probably aware—
PAT BUCHANAN: Mm-hmm.
PRESIDENT NIXON: Its problem is that he did not practice much law, you know.
BUCHANAN: Right.
PRESIDENT NIXON: [with Buchanan assenting] He has no—he just went right into Congress, so we’re trying to get . . . We don’t want to walk in there and have the damn people of the Senate turn him down for that reason. But there, we’re going to try to enlist [Brooklyn congressman and Judiciary Committee chairman] Manny Celler and a few others to say, well, that Judiciary Committee service [for] ten years is an equivalent, see?
BUCHANAN: Right, sir. Mm-hmm.
PRESIDENT NIXON: Right. Right. Right. But . . . it seems to be moving all right, but . . . I think, actually, that that’s bound to have a very salutary effect on our Southern friends, don’t you think?
5
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 11 BUCHANAN: Sure.
PRESIDENT NIXON: Substituting Poff for Black. God, it’s . . . Here you’ve got a strict constructionist conservative who signed the Southern Manifesto. And frankly, it’s fine. Let some of those that are—the libs vote against him on that.
BUCHANAN: That will really split the Democrats in the Senate, I would imagine.
PRESIDENT NIXON: Yeah. Right.
BUCHANAN: Right down the line on that thing.
PRESIDENT NIXON: Yeah. Yeah. I just hope to Christ we get the votes.
4. PRESIDENT NIXON AND PAT BUCHANAN (OCTOBER 12, 1971)(TAPE 288-11)(EOB)
PRESIDENT NIXON: As long as I’m sitting in the chair, there’s not going to be any Jew appointed to that Court—not because they’re Jewish, because there’s no Jew, Pat, that can be right on the criminal law issue.
PAT BUCHANAN: Yeah.
PRESIDENT NIXON: Have you ever known one that was?
BUCHANAN: No.
PRESIDENT NIXON: They’re all got hung up on civil rights. So you’re going to get two conservatives on this Court.
[Break.]
PRESIDENT NIXON: They assassinated one man—an honorable, decent man, Poff— because he happened to be a Southerner. Now, the President is concerned about they’re now going to attempt to assassinate another man [Robert Byrd], because he happens to be basically a conservative. It shows it isn’t just Southern—it’s conservative!
BUCHANAN: That’s right.
PRESIDENT NIXON: That’s what they’re after. Right?
BUCHANAN: It sure is. It sure is. As long as you got that Court, this is there. It scares the hell out of them—these two appointments.
PRESIDENT NIXON: They’re scared.
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12 ■ Toxic Torts and Environmental Law ■ March 2017 BUCHANAN: They’re saying you shouldn’t have the right to appoint these two to turn it around. This is just a historic struggle right now.
[Break.]
PRESIDENT NIXON: Yeah. They say that I should balance. Well, for Christ’s sakes, did they balance it?
BUCHANAN: That’s right. Yeah. They would have had it 9-0.
PRESIDENT NIXON: Did they balance it? For God’s sakes, what kind of people did Johnson appoint? Even Eisenhower! He appointed Warren, and he appointed Brennan.
BUCHANAN: Right.
PRESIDENT NIXON: And he appointed Potter Stewart, who is . . .
BUCHANAN: Wishy-washy.
PRESIDENT NIXON: Acey-duecey.
BUCHANAN: Yeah. He is, huh? [laughing]
PRESIDENT NIXON: Academically speaking. Not in a sexual way. But goddamnit, he goes out to Georgetown and votes wrong on this damn . . . But Potter will go with the four [Nixon appointees], I think. See, this gives [Warren] Burger the whip hand.
[Break.]
PRESIDENT NIXON: They’ve to the point where they’ve got to confirm a Southerner.
BUCHANAN: That’s right.
PRESIDENT NIXON: Don’t you agree?
BUCHANAN: I do.
PRESIDENT NIXON: One Southerner. We’re going to find one. Have to dig deep.
[Break.]
PRESIDENT NIXON: My point is this: if you were to poll the country, 60 percent of the country would say they don’t want a woman on the Court. But on the other hand, those people are not going to vote against you—
BUCHANAN: That’s right.
7
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 13 PRESIDENT NIXON: –if you put a woman on.
However, the 10 percent who feel strongly that one should be on there might switch.
BUCHANAN: That’s right.
PRESIDENT NIXON: What do you think?
BUCHANAN: You’re right on that. It’s like the gun control issue.
PRESIDENT NIXON: Right.
BUCHANAN: Fifty percent of the people want gun control, the other 10 percent will kill you.
PRESIDENT NIXON: That’s right.
BUCHANAN: But you know, you’ve got a point here. George McGovern said on Sunday on television, “My first choice would be a woman for the Supreme Court if I could make it. I promise you that.” And they’re really going to be in a box if you’ve got a woman that’s a strict constructionist, because I don’t see any way they can turn it down.
PRESIDENT NIXON: Shit, you know they’ll try!
BUCHANAN: Yeah. Well, I can’t see—
PRESIDENT NIXON: Because she’s been reversed. She’s been reversed by the California Supreme Court several times.
[Break.]
BUCHANAN: Is Byrd in on this deal, though? Does Byrd know we’re going there? Is he bothered by it, or what?
PRESIDENT NIXON: No, I don’t know. He brought up his own name to me.
BUCHANAN: He did?
PRESIDENT NIXON: No, but my point is: it’s a high honor to be considered for the Supreme Court. [Unclear.] We’re not hurting him. Byrd is . . . but his colleagues are going to kill him. Let us see how bad they are. Do you agree?
BUCHANAN: I agree. I agree 100 percent. Do you think they will come out and say anything, or will they say, “Well, wait and see”?
PRESIDENT NIXON: No, no, they’ve got to come out.
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14 ■ Toxic Torts and Environmental Law ■ March 2017 BUCHANAN: Yeah.
PRESIDENT NIXON: But I want to get the NAACP on this one. I want to get . . . I want to get . . . But mainly worry those sons of bitches in the Senate. 5. October 15, 1971 9:37 am - 9:52 am Oval Office RN and HRH 593-7 [RC 1274-7]
[596] RN: On this, the Supreme Court thing--
HRH: The General wants to see you this morning before you go again. He says, you have a Chief Justice problem he said.
RN: Is it the woman?
HRH: I suppose that's what is has to be. He called me last night. Said it was imperative that he see you before you leave today.
[Pause]
RN: [Unintelligible].
HRH: John Dean's been out working over Mildred Lillie and uh, she, she's ecstatic. He says, she's a god damn jewel. Says she's tough, able, personable, marvelous woman. Absolutely clean. Solid conservative. Democrat. Catholic leader. Very big community type, which she is. Her husband [unintelligible] some uh, business [unintelligible] but that's perfectly clean. There's absolutely nothing there, Dean thinks, now. Having worked him over pretty hard, there's nothing that, as far as any trouble on that.
RN: Let me ask, tell you one thing though, that on the Court, god damn it, are all these leaks come from the American Bar or the Justice Department, wherever, the White House or what? What the hell--
HRH: The [unintelligible] says nobody here knows who you're talking about. Except Ehrlichman and you're not going to get those out of him.
RN: [Unintelligible] here of course. Must be out at Justice.
HRH: That's [unintelligible] true. There's nobody here who knows. We've shot down Dean on a one shot basis that he's--
RN: He's not talking.
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The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 15 HRH: …totally reliable. He never talks to the press on anything. He has a flat rule that he doesn't.
RN: Well I'm never going to submit anything to that god damn Bar again. It really, they have now, they've got it down to two, t-, two names.
HRH: Well, there was apparently a request from Justice--
RN: Yeah.
HRH: …that those two be given first--
RN: Well actually, that's exactly what we did, but they're not supposed to put it out.
HRH: But they obviously did. As soon as they get the thing to you, this is six names with uh, uh, a speed of, and there are two vacancies so they never can figure out what's happening.
RN: Oh I'm really going to sit on Burger on this one. Burger has been a made Chief Justice, I made him Chief Justice to fend him off, you know what I mean? He'd have never made it with anybody else in this office.
HRH: For sure.
RN: And now, god damn it, I hope our people, we make them Chief Justice, Secretary of State, Secretary of Defense,--
HRH: From all I can gather, it, of all the problems you have with a woman, Mildred Lillie comes as close to not being any of those problems as you'll ever get.
RN: Well the whole point is this, Bob. These people all get it. And they start, start negotiating with you. Well now god damn it, I'm just, just tired of this, you know, we uh--
HRH: That's right. Put on their robes and all of sudden they [adopt?] this…
RN: Yeah, well Arthur Burns [unintelligible]. Arthur Burns.
HRH: All of a sudden they think they can [unintelligible] by divine right.
RN: …[unintelligible]. Yeah, we're going to get, get the uh, oh be sure that Pat knows that she's not going to Camp David.
HRH: Okay.
RN: That we'll just go directly from Andrews to Camp David. [670]
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16 ■ Toxic Torts and Environmental Law ■ March 2017 6. October 15, 1971 10:38 am - 11:32 am Oval Office RN, HAK, SBB, JNM and JDE 593-11 [RC 1275-4, 1276, 1277]
[Bull enters and leaves prior to discussion of Supreme Court nominees. Kissinger leaves just after Mitchell and Erlichman enter at 10:40 am.]
[RC 1275-4, 678]
Attorney General John Mitchell (JNM): Mr. President, I think the best uh, topic of conversation is that we got Chief Justice problems.
RN: Yeah.
JNM: You know, let me give you the scenario and uh, see where you want to go with it. On Wednesday, he wrote, and made a letter that I mentioned the other day, that talked in general terms about the strengthening of the Court, pointed out that there was no qualified woman to be on the bench, said that Friday was great, he reaffirmed that, and went on to the point that he thought the only way to strengthen the Court was to put on somebody who was nationally known in, in the judiciary. And he went back over the same bunch of names, all the sixty-five and sixty- nine year olds--
RN: Yeah.
JNM: …of uh, of the bench. The uh, letter was rather moderate in tone and I thought that it was just a usual pitch. But yesterday, he insisted upon coming over to the Justice Department to see me. I told him that was very unwise--
RN: Yeah.
JNM: …at this particular time to do it. He shouldn't do it. He had to. He came over and he had a uh, a handwritten letter that he read to me and it was, in effect, a letter of resignation to take place on September 18th, 1972. I pointed out to him that no--
RN: I, well I, I accept it.
JNM: [Clears throat] Mm.
RN: Right now. Right now.
JNM: Yeah well we can't do that.
RN: Oh [unintelligible] next week I [unintelligible] both [unintelligible].
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The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 17 JNM: Well I should thank you. We had a good hour and a quarter of hard talk. I told him that there was no way that he could deliver an ultimatum to you, that if he resigned he was doing the very thing to the Court uh, that he was trying to uh, protect it against and uh, I think uh, Warren--
JNM: …that if he resigned he was doing the very thing to the Court uh, that he was trying to uh, protect it against and uh, I think uh, Warren's somewhat in a uh, a state of confusion. He's been sick, you know, for about three weeks, with a fever and has been taking medicine. He's had this new term open up, etcetera, etcetera.
RN: Bastard.
JNM: Uh, yeah, that's true.
RN: Did you check his [unintelligible] funeral and stuff? I have understand all that ,but you can't have, look, we have a situation here where people that we've appointed, they think we're doing them a hell of a favor,--
JNM: Mm hmm.
RN: …doing ourselves a favor. All right, now, Warren Burger wouldn't be on that Court unless I had found him.
JNM: That's absolutely correct.
RN: There wouldn't be a chance he would be on that Court. I think it's great that he's there, but he's not going to affect anybody, to come, that his resignation is going to be accepted, I’ll close that god damn Court up. We're not going to have that kind of thing from abroad or at home. Politics to the contrary notwithstanding. It's just too bad.
JNM: I quite agree that he cannot present you with an ultimatum--
RN: Sure,--
JNM: …of any form--
RN: …sure.
JNM: …shape… [unintelligible]
RN: He can't choose the people. It's like Ar-, he's acting just like Arthur Burns. Arthur Burns wants to name, we're going to put Kramer up at the United Nations, we have three people on the Federal Reserve, and we're going to have control of the god damn thing. Arthur wants to name his successor. Not on your life. Not on your life he's going to name them. We'll consult him, but he isn't going to name them. That isn’t what the country is supposed to do.
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18 ■ Toxic Torts and Environmental Law ■ March 2017 JNM: Well we shouldn't even be consulting with him actually. He's the one that's consulting. I haven't been consulting with him. He's the one who's had the input.
RN: Who?
JNM: B-, uh, Burger.
RN: Yeah, okay.
JNM: At least I haven't gone around to ask who is Burger [unintelligible].
RN: Well I, I didn't mean it, but I just don't like this idea of coming in, this uh, well I, I threaten to resign. We hear it around here all the time too. White House staff, well he’ll resign unless you do this or that. Well that's all, fine. I say fine, resign. I don't think anything is, that's uh, so they're, so they'll resign and that's, that's fine, and they'll be heroes for a while, and then forgotten. That's the way it works.
JNM: I quite agree with you. The Court will go on but I think this would be a hell of a time to have it happen because we will have a upheaval of, in the press and all the rest of it that will be carried out of the proportion that you and I know that--
RN: I understand.
JNM: Now, uh--
RN: This is because of the woman, is that his point?
JNM: Basically I believe it is.
[Soft end]
RN: Yeah, yeah. Did he make up the specific one?
JNM: Yes he brought it up, I didn't. He brought up the names. Uh, and his uh, his argument, of course, is that uh, she's great but not distinguished and you need a distinguished lawyer to strengthen the Court and, a distinguished judge to strengthen the Court. [Clears throat] Now what I would like to suggest when I talk to Mr. Burger tomorrow, that this is completely unacceptable, he should go about his way. He can't be giving you ultimatums and just go back to his branch of the government and let you run the executive branch with the appointments. This is, in effect, what I told him yesterday, and I think by the time he got through he was, you know, a little off the kick but I'm not sure.
RN: Well what I meant John is this, that uh, Warren Burger is uh, probably, in terms of the way he's handling this, is really one of the best appointments we've made.
JNM: I agree with that.
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The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 19 RN: We're god damn proud of that appointment. And we can't say that about, I know, a lot of the Cabinet as you know. Uh, we've done best we could with some mediocrities but we've only got about three or four in the Cabinet that uh and you know the ones I speak of. [unintelligible]. Now, in the case of Burger, though, uh, you, you know how strongly I feel about this uh, court [unintelligible].
JNM: I'm well aware.
RN: L-, let's talk about distinguished men. He may, why doesn't he go back and read the editorials about him?
JNM: I--
RN: He was referred to as an undistinguished--
JNM: I brought that--
RN: …with an undistinguished record.
JNM: I brought the--
RN: …[unintelligible] the press. You remember? And, and I had to defend him. I said yes, he is undistinguished, he just [unintelligible] certain [unintelligible]. And went to a night law school. Mike Wallace was [unintelligible] or something? Correct.
JNM: I brought that subject matter up with him and he said, well we must have been reading the different editorials.
RN: [Unintelligible] distinguished. Now, who is distinguished, Brennan? That real [drawn out, sarcastic] legal genius, Brennan? Or Thurgood Marshall? Or Whizzer White? He's a god damn football [unintelligible]. He's not distinguished.
JNM: That point you make--
RN: Yeah.
JNM: …that they're all undistinguished.
RN: Do you consider Blackmun distinguished?
JNM: He both feels that he is a [unintelligible]--
RN: I don’t.
JNM: …fairly strong--
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20 ■ Toxic Torts and Environmental Law ■ March 2017 RN: What really makes a man distinguished, John, is, you know, is what he does when he gets on that bench.
JNM: His performance.
RN: Black was considered to be a terrible appointment at the time that it was made. Thirty-four years later people would generally agree that he was a damn brilliant jurist, huh?
JNM: Including Burger. He was…
RN: [Unintelligible].
JNM: …thought, thought Black was the greatest.
RN: Now, now the point is uh, uh, Burger, that must scare him to death. Uh, but uh, and it's really not our Democratic friends. Did you hear what, what [laughs] Scoop Jackson's done?
JNM: No.
RN: He's written a letter to Muskie and Teddy and the rest saying we've got to let the President know that we stand behind our colleague in the Senate on [unintelligible].
JNM: [Laughs]
RN: Well I noticed this morning in the news summary that uh, that John noticed, said the one they're knocking is Friday [unintelligible], but all they had are Fulbright's [unintelligible].
JNM: Yes, Fulbright [unintelligible], Mills.
RN: Mills, that is not too bad. Uh, I, I have a feeling uh, now that we've talked about Friday that uh, [unintelligible] that Burger does think he's distinguished--
JNM: Yeah, he put it right in the letter.
RN: But the others that are distinguished is Powell. He's sixty-four years old.
JNM: Correct.
RN: And as far as women, there are no women that are distinguished. Look at this woman for example. Uh, did you see the news summary this morning on her?
JNM: No. I, I've seen all the newspapers but I haven't seen the news summary.
RN: Well uh, what I'm getting at is that [unintelligible], I don't think any of those women are worth are damn. You know that.
15
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 21 JNM: I agree.
RN: But on the other hand, John, [aside to aide] bring me the news summary from the press release.
JNM: The uh--
RN: On the other hand, we've got a situation where, where there is a uh, there is in this country a very strong conviction. I take a fellow like Connolly now. If you think you’re opposed to a woman, you should hear him. And not only is opposed, but his wife is. All out [Unintelligible], typical Southern wife, thinks it’s terrible, but thinks we ought to do it.
JNM: Does he?
RN: He, he--
JNM: Does he?
RN: …he says, here's his reasoning. He says these women are [enraged]. He said they hold onto the Equal Rights Amendment, you know, you see what's happened that, that [unintelligible], it's a terrible, even though I did support it when I was running for office. I got that thing passed with only about twenty votes against it, and John, you know what I was talking about the, the equal rights thing is just foolish, right?
JDE: Right.
RN: But the women are either, these people are a bunch of, of, really fanatics and—
7. PRESIDENT NIXON AND JOHN MITCHELL (OCTOBER 20, 1971)(TAPE 12-15)
JOHN MITCHELL: Now, I’ve talked to Judge [Lawrence] Walsh.
PRESIDENT NIXON: Yeah. How’s he coming out?
MITCHELL: They have turned down both of them.
PRESIDENT NIXON: Good.
MITCHELL: Which was to be expected—
PRESIDENT NIXON: They turned down Friday?
MITCHELL: Yeah.
16
22 ■ Toxic Torts and Environmental Law ■ March 2017 PRESIDENT NIXON: Well, I’ll be damned.
MITCHELL: Well, it was a 6-6 vote.
PRESIDENT NIXON: Well, then, how about Lillie? What was it there?
MITCHELL: Eleven to one.
PRESIDENT NIXON: What’d they just say—not qualified?
MITCHELL: Yeah.
PRESIDENT NIXON: Great! Great.
MITCHELL: And do you know what they said?
PRESIDENT NIXON: Great!
MITCHELL: [continuing] That she was probably as good as any woman that could be considered by the Court.
PRESIDENT NIXON: Yeah. Yeah. Yeah.
MITCHELL: This statement was made up there.
PRESIDENT NIXON: Well, are they going to put that out?
MITCHELL: No, no. They’re not going to put anything out.
PRESIDENT NIXON: Well, we’ll put it out.
MITCHELL: We’ll get it out.
PRESIDENT NIXON: Get that out. Yeah.
MITCHELL: At the time and place when we want to.
PRESIDENT NIXON: Well, we’ve got to do it, I think, before we make the damned announcement. I don’t know, I . . .
MITCHELL: Well, there’ll probably be a leak up there.
PRESIDENT NIXON: All right; good.
MITCHELL: There’ll probably be a leak up there; I don’t think they can help it.
17
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 23 PRESIDENT NIXON: But they said that she was as good as any woman?
MITCHELL: That’s what [Lawrence] Walsh told me—
PRESIDENT NIXON: That’s nice.
MITCHELL: –the statements were in there.
PRESIDENT NIXON: That’s nice. Well—
MITCHELL: There just wasn’t a qualified one.
8. PRESIDENT NIXON AND JOHN MITCHELL (OCTOBER 20, 1971)(TAPE 12-25)
PRESIDENT NIXON: Isn’t it interesting—why do you think they pissed on [Hershel] Friday, of all things? Gee whiz—
JOHN MITCHELL: Civil rights.
PRESIDENT NIXON: I’ll be damned.
MITCHELL: Mm-hmm.
PRESIDENT NIXON: Really?!
MITCHELL: Yeah. That’s what Ed Walsh told me.
PRESIDENT NIXON: Well, they’d do the same on [Lewis] Powell, then, won’t they?
MITCHELL: [laughing] They’re not going to have—nobody’s going to have a chance.
PRESIDENT NIXON: You mean: I will have named him, huh?
MITCHELL: You will have named him, and . . .
PRESIDENT NIXON: Yeah.
MITCHELL: And it won’t be this pressures, you know, from all over the country—
PRESIDENT NIXON: Yeah.
MITCHELL: From law [unclear]—
18
24 ■ Toxic Torts and Environmental Law ■ March 2017 PRESIDENT NIXON: The civil rights? I’ll be goddamned.
MITCHELL: Mm-hmm.
PRESIDENT NIXON: Well, they can—
MITCHELL: Yeah. Ed Walsh admitted to me that that was it.
PRESIDENT NIXON: Mm-hmm. [Pauses.] Well, the woman thing—that’s got to get out, you know. Some way . . . I mean, naturally—the vote will get out, won’t it? Everything else has leaked out of there [the ABA]. Now, believe me, we’re going to leak this out if they don’t.
MITCHELL: You can rest assured we’ll get it out one way or the other.
PRESIDENT NIXON: Right. And get—but . . .
MITCHELL: And Walsh knows it’s coming.
PRESIDENT NIXON: Yeah.
MITCHELL: He’s been well-programmed—
PRESIDENT NIXON: And the 11-to-1. And I think the 11-to-1 is brilliant, because it’s a jury that way, see? It’s a stacked jury. All men. Huh?
MITCHELL: Absolutely.
PRESIDENT NIXON: And not one [woman] qualified—she’s the best qualified woman, but she’s not qualified for the Supreme Court. Jesus, that’s great. That’s great.
MITCHELL: We just have to program it, and . . .
PRESIDENT NIXON: Mm-hmm.
MITCHELL: Of course, we can’t go too far until you get through tomorrow night, because otherwise, then, the surprise of the operation will be destroyed.
PRESIDENT NIXON: That’s right. That’s right.
MITCHELL: But we’re working on the letters, and so forth. We’ll have it pretty well set up.
[Break.]
MITCHELL: Do you want that to come from over here, or . . .
19
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 25 PRESIDENT NIXON: No. What? The . . .
MITCHELL: The background information on these people.
PRESIDENT NIXON: Oh, yeah. Yeah. You pick up the background dope the best you can.
MITCHELL: Right.
PRESIDENT NIXON: I mean, a strong sales talk on each.
MITCHELL: Right.
PRESIDENT NIXON: Particularly where they—I mean, if they were top in their class, or near the top, say so. Things of that sort, you know.
MITCHELL: Yeah.
PRESIDENT NIXON: You know, the kind of thing that shows they’re scholars, and all that bullshit. [Mitchell laughs heartily.] OK.
MITCHELL: Right.
PRESIDENT NIXON: All right.
MITCHELL: Right.
9. PRESIDENT NIXON AND DICK MOORE (OCTOBER 20, 1971)(TAPE 12-19)
http://kcjohnson.files.wordpress.com/2009/02/rn-moore-baker1-choice.mp3
PRESIDENT NIXON: Dick?
DICK MOORE: Yes.
PRESIDENT NIXON: We are—we still don’t know what’s going to happen on the . . .
MOORE: Right.
PRESIDENT NIXON: The Bar has, incidentally—that’s all worked out. That played right into our hands.
MOORE: Oh, good.
20
26 ■ Toxic Torts and Environmental Law ■ March 2017 PRESIDENT NIXON: Exactly what we wanted.
MOORE: Good.
PRESIDENT NIXON: You know, it’s an interesting thing: they—this for your very private information, we’re going to get this leaked—they voted against her [Judge Lillie] 11-1.
MOORE: Uh-huh?
PRESIDENT NIXON: But they said that of all the women in the country, she was probably the best qualified that they could think of. But she was not qualified to be in the Court.
How do you like that?
MOORE: [gleefully] That is, of course—what could be more important, or better than that?
PRESIDENT NIXON: Mitchell has got to—of course, I . . .
MOORE: How do you get that out?
PRESIDENT NIXON: You’ve got that information, now, and you can . . .
MOORE: Oh.
PRESIDENT NIXON: But that, he says—I says, “For Christ sakes, let’s get it out.” So that’ll . . . We’re going to really, really ream ‘em on that.
MOORE: Oh, that’s superb. That—
PRESIDENT NIXON: Not qualified.
Now, incidentally, the one thing I want to know—because we’re going to have to move fast, and I can’t consult anybody on it—is on the Rehnquist one . . . In case I don’t get the Baker [pick] (Baker is the first choice—
MOORE: Right.
PRESIDENT NIXON: –and we’ll know on him within an hour or two), but in case we don’t get that: on Rehnquist, you checked—as far as [John] Ehrlichman, now—
MOORE: Yes.
PRESIDENT NIXON: You say he is for it, or not?
MOORE: Very enthusiastically for it, I think I can say.
21
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 27 PRESIDENT NIXON: He says—he’d just throw him right up there. Now, understand, we’re not going to clear these with the Bar.
MOORE: I understand—it was my impression, Mr. President, that he was Erlichman’s number one recommendation.
PRESIDENT NIXON: OK. Good. Well, that’s good. Between you and him—don’t go any further.
MOORE: Right. Uh-huh.
PRESIDENT NIXON: Because it’s going to be damn hard for those people to turn him down.
10. PRESIDENT NIXON AND JOHN MITCHELL (OCTOBER 20, 1971)(12-13)
PRESIDENT NIXON: Let me ask you this: I just got Dick in here, Dick Moore—
JOHN MITCHELL: Yeah.
PRESIDENT NIXON: —a minute ago. And I may reevaluate. He comes down very hard on your man Rehnquist. He just thinks that, you know, second in his class at Stanford, was clerk to Robert Jackson, and then from your account apparently conservative.
MITCHELL: Absolutely.
PRESIDENT NIXON: And would make a brilliant justice. Would you agree?
MITCHELL: Yes, sir.
PRESIDENT NIXON: What would the country say about him? He sure is qualified, isn’t he?
MITCHELL: I would believe so. I don’t think there’s any question about it. It’s an opinion expressed by Ed Walsh when we were talking about this. From his point of view, he certainly would.
[Break.]
PRESIDENT NIXON: Well, people all think so highly of the guy—he must have a helluva lot on the ball.
22
28 ■ Toxic Torts and Environmental Law ■ March 2017 MITCHELL: Oh, he’s got a tremendous legal mind, Mr. President, there isn’t any question about it. And just as solid as can be.
PRESIDENT NIXON: Yeah.
MITCHELL: [with the President assenting] He’s made a tremendous impression upon the judiciary around here, and people on the Hill, and the ones in the Bar he’s dealt with.
[Break.]
PRESIDENT NIXON: Incidentally, what is Rehnquist? I suppose he’s a damn Protestant?
MITCHELL: I’m sure of that.
PRESIDENT NIXON: That’s too bad.
MITCHELL: He’s about as WASPish as WASPish can be.
PRESIDENT NIXON: Yeah, that’s too damn bad. Tell him to change his religion.
MITCHELL: [laughing] All right, I’ll get him baptized this afternoon.
PRESIDENT NIXON: Well, baptized and castrated—no, they don’t do that. I mean, they circumci—no, that’s the Jews. Well, anyway, whatever he is, get him changed.
11. PRESIDENT NIXON AND JOHN MITCHELL (OCTOBER 21, 1971)(TAPE 12-28)
JOHN MITCHELL: Good morning, Mr. President.
PRESIDENT NIXON: Did you work it out?
MITCHELL: [Howard] Baker wants to go, and I told him that you still had the options open, and I would refer to you his availability.
PRESIDENT NIXON: Well, he wants to go now, huh?
MITCHELL: Yes, sir. Mm-hmm.
PRESIDENT NIXON: Well, goddamnit, you couldn’t talk him out of it, huh?
MITCHELL: Well, not on the basis in which we’ve been pushing him into it. But I went through the same routine, and I think you have an option if you want to go the other way.
23
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 29 [Pauses; the President sighs.] I don’t think that it’s going to disturb him too much if you use your options in another direction.
PRESIDENT NIXON: Mm-hmm.
MITCHELL: If you feel stronger in that other direction.
PRESIDENT NIXON: [Pauses for 17 seconds.] Have you got any . . . have you got anything . . . This will decide me a lot: could you take five minutes off and then call me back? What was his record in law school and so forth? Do you know anything about that?
MITCHELL: No, but I presume we might be able to—
PRESIDENT NIXON: I need to know.
MITCHELL: —dig it out.
PRESIDENT NIXON: I need to know. I mean, I want to know, really, whether he was just a playboy or whether he buckled down and did things. Because I’m preparing my remarks now and this all revolves around that—that these are guys that are qualified, you see?
[Break.]
PRESIDENT NIXON: [on Rehnquist] Phi Beta Kappa, first in his class—
MITCHELL: That’s right.
PRESIDENT NIXON: —law clerk to one of the great judges of this century, and practiced law, is a lawyer’s lawyer, and so forth.
Damn it, I really think we ought to go that way.
MITCHELL: All right; well, I’ll turn Baker off.
[Break; Mitchell calls Baker to tell him of the President’s decision, and then calls the President back.]
PRESIDENT NIXON: I would call [Leon] Jaworski and [Lawrence] Walsh [of the ABA], and say we just have appreciated enormously what they have done, that what the President has done now—he’s just said, “The hell—we just can’t submit these people to ‘em and have them beaten down for non-legal reasons.” But that he has selected two men that he knows the Bar, without even asking, will get well-qualified from the Bar, in both cases. And then tell ‘em what it is. Fair enough?
MITCHELL: Yes, sir, will do.
24
30 ■ Toxic Torts and Environmental Law ■ March 2017 PRESIDENT NIXON: Now don’t tell either—particularly don’t tell Walsh—I don’t know Jaworski—but don’t tell him before 6:30 or so.
MITCHELL: I won’t—
PRESIDENT NIXON: The reason being is that they have staffs, and they may tell ‘em, and the staff will leak. You know they’ve got these Jews that work (Walsh has) that work for him. And the Jews leak, John, you know that.
MITCHELL: [laughing] I sure do.
PRESIDENT NIXON: OK?
MITCHELL: No, I will talk to him—
PRESIDENT NIXON: Yeah.
MITCHELL: —just before the event.
PRESIDENT NIXON: I’m very pleased. Have you told Rehnquist yet?
MITCHELL: Not yet, but I’m sure that he will be more than pleased.
PRESIDENT NIXON: Pleased?! Christ, he’ll probably drop his teeth!
MITCHELL: I would expect so.
PRESIDENT NIXON: Yeah. I don’t want to see him. I think it’s not . . . I don’t think I should.
MITCHELL: No necessity for it.
PRESIDENT NIXON: And I haven’t seen [Lewis] Powell. I wouldn’t know him if I saw him. I may have met him but I don’t know him.
MITCHELL: Well, he’s a very distinguished-looking gentleman.
PRESIDENT NIXON: Yeah. And I think really it’s a good move. We’re going to knock their goddamn blocks off, and fight it through.
You say that Powell made a speech against Martin Luther King. That’s the only thing you can find on his record that’s bad, huh?
MITCHELL: That’s correct.
PRESIDENT NIXON: What kind of a speech was it, too? Was it rabid, or—
25
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 31 MITCHELL: Oh, no, no, no, no. it’s hard to do with that argument that’s prevailed here for the last four or five years in civil disobedience situations—
PRESIDENT NIXON: I see. Well, that’s all right. That’s a legitimate thing. I said many of the same things.
MITCHELL: Yes. And so—
PRESIDENT NIXON: Well, I think it’s been a fine job, John.
26
32 ■ Toxic Torts and Environmental Law ■ March 2017 Exhibit B
Exhibit B
The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 33 34 ■ Toxic Torts and Environmental Law ■ March 2017 The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 35 36 ■ Toxic Torts and Environmental Law ■ March 2017 The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 37 38 ■ Toxic Torts and Environmental Law ■ March 2017 The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 39 40 ■ Toxic Torts and Environmental Law ■ March 2017 The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 41 42 ■ Toxic Torts and Environmental Law ■ March 2017 The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 43 44 ■ Toxic Torts and Environmental Law ■ March 2017 The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 45