"If that's the way you're going to look at it, I'll remove myself," Brennan responded.
The matter was left dangling until the next conference, but Brennan was concerned. After Fortas and Haynsworth. the Court could not afford another black eye.
Brennan went to see Harlan, a man of strict propriety. Harlan was both offended by and amused at Corcoran. The lawyer-lobbyist, he observed, just couldn't make a distinction between Congress, where he always lobbied, and the Court. Since the Supreme Court Building was geographically on "the Hill," Corcoran probably just stumbled across First Street after an attempted seduction of some Senator. The important thing was that Corcoran had not been allowed to make his arguments and had been thrown out. Harlan would have recused—disqualified—himself if Corcoran had come to him, but each Justice must decide for himself.
Privately, Harlan thought Brenn
an should not even have expressed his tentative desire to rehear the case.
Brennan, still concerned, went to Black.
Black had not told the conference that Corcoran had also visited him. He had not wanted to hurt his old New Deal friend. But he had been quietly telling individual Justices about the episode. Now he told Brennan.
That made it even worse, Brennan felt.
They agreed on a course of action. Only Brennan, who was more upset about the appearance of the visit and was also tentatively in favor of helping El Paso, would formally remove himself from the case. With Brennan out, that left Black and Douglas from the old majority, and neither wanted the case reconsidered. Thus, no member of the old majority would propose the discussion, and the rehearing petition would be denied. Brennan soon formally notified the conference that he would not participate. He considered the matter settled.
Burger, however, wasn't happy. Corcoran's visits were stupid, but trivial. That should not interfere with the Court. Clearly the votes were there to grant a rehearing, and probably reverse the decision. Brennan's recusal had tipped the balance to
3
to
2
in Burger's favor—himself, Harlan, and Stewart versus Black and Douglas. The Chief needed the vote of the Fortas replacement to win now, for without it, he lacked a quorum. For the Court to conduct any business, six members must participate.
But the others were holding him to the Rule
58
technicality that permitted consideration of the rehearing petition only on the motion of a member of the old majority, of which only Black and Douglas remained. Since they were opposed, the case could not even be discussed. The minority would have its way over the majority. As the Chief was fond of saying, that made no sense. And if it didn't make good sense, how could it make good law?
The year before, Earl Warren had pulled out all stops to get his way. Douglas had done everything to push toward
a
divestiture order. And now Brennan was dropping out, thus preventing the Court from readdressing the issue.
The Chief had been working on a revision of the Court's rules. He decided that Rule
58
on rehearings was too restrictive, and he wrote out a change. Instead of requiring that a Justice from the old majority propose any reconsideration of a decision, the Chief wanted the rule to read that any Justice could do so.
Burger's suggestions for revision of the rules were sent around to all the chambers. If the changes were adopted, the El Paso rehearing petition could be considered. He was confident that he had the votes.
Reading the Chief's suggested changes, Douglas immediately noticed Burger's proposal concerning Rule
58.
Douglas had watched the new Chief for months. His anxiety had mounted. Now he had caught Burger red-handed, trying to change the rules to fit one case. It was crooked. Burger's lack of intellect, Douglas felt, was necessarily forgivable. This was not.
Douglas was determined to get in an early shot. He sat down at his desk to draft a dissent for publication. It was written as if the rehearing had been voted and the change of Rule
58
had been approved. He laid out the long history of the case—the Court's struggle to enforce its ruling, the petition for rehearing, Corcoran's ridiculous lobbying efforts, the Chief's proposal to change Rule
58,
and the break with the traditional prohibition that new Justices not vote on rehearing petitions. Douglas tried to push the Nixon-Burger rhetoric about judicial restraint and strict constructionism down Burger's throat. He charged that the Court and its rules were being manipulated to overturn
a
one-year-old precedent. He portrayed the new Chief as
a
radical interventionist—a Justice who was sticking a knife in the heart of
stare decisis.
If the conference consented to the rule change and granted the rehearing, Douglas would publish his ten-page memo as a dissent to the official announcement of the Court's decision to rehear the case. Douglas sent his memo to the printer and had it circulated. It went off like a bomb in the other chambers.
To those clerks who had not been informed about the Chief's proposed changes, it was an eye-opener. Clearly, the Chief and Douglas, two of the most stubborn men on the Court, were on a collision course.
Stewart and Black were worried. The Court did not normally air its disputes publicly—nor, for that matter, publish the improprieties of a member of its own bar, like the lobbyist Corcoran.
Stewart went to Douglas, who assured him that he was firm about publishing his dissent. Douglas was sure this was how to blow the whistle.
Stewart and Black spoke with the Chief. Douglas will go ahead, they warned him. Burger had to withdraw his proposed change to Rule
58.
There was no choice. The Chief agreed.
On June
29, 1970,
the Court announced that the El Paso rehearing was denied.
Douglas was pleased. The incident suggested that Burger would go far to win, but that when he was threatened with being put in an unfavorable light, he would back down.
Harry A. Blackmun, a veteran of eleven years' service on the Eighth Circuit Court of Appeals, was at work in his office in Rochester, Mi
nnesota, the morning after Cars
well's defeat in the Senate. At
11:05 a.m
., the phone rang. It was Attorney General John Mitchell. "Can you get to D.C. and meet me at
9 a.m
. tomorrow?" Mitchell asked.
"Do you know how far it is out to D.C. from here?" Blackmun replied respectfully. Rochester was a remote outpost, and there were no direct flights. "What's on your mind?" Blackmun asked.
In fact, Blackmun strongly suspected that the Nixon administration had finally found its non-Southerner to fill the Fortas seat. The sixty-one-year-old Blackmun knew that he had been on earlier lists and that the F.B.I, had conducted a routine background check on him.
Mitchell was evasive.
"Do I have to prepare anything to bring with me?" "No, just come."
The next day at
11:15 a.m
., Blackmun arrived at Mitchell's office at the Justice Department. The grilling began. Mitchell was determined to learn everything about his latest nominee. There would be no more surprises. He wanted to know if there were skeletons. He quizzed Blackmun about his finances, his social activities, his writings, and his appeals court decisions.
Assistant Attorney General Rehnquist, head of Mitchell's personal legal staff at the Justice Department—the office of Legal Counsel—joined them. He was followed two hours later by Johnnie M. Walters, the head of the Department's tax division. There would be no mistakes this time. Any area of possible trouble had to be identified.
There were some minor difficulties. Blackmun held
$2,500
and
$1,350
of stock in two companies, and he had ruled on cases indirectly involving them. Insubstantial as Blackmun's holdings were, Haynsworth had been hurt by disclosure of such alleged conflicts. It was decided that Walters would accompany Blackmun to Minnesota to gather the records. Everything had to be made public before or right after the announcement of the nomination.
That afternoon Mitchell and Blackmun went to see the President at the White House. Nixon had not met with Haynsworth or Carswell before their nominations, but he wanted to see Blackmun. Nixon found Blackmun's moderate conservatism perfect. A short, modest, soft-spoken man, Blackmun had been Phi Beta Kappa at Harvard, had gone on to Harvard Law School, a clerkship at the Eighth Circuit, sixteen years of private practice and about ten years as general counsel to the famous Mayo Clinic. After that he had been appointed to the Eighth Circuit by Eisenhower. He had academic credentials, practical legal experience in the Middle West, and a predictable, solid body of opinions that demonstrated a level
-
headed strict-constructionist philosophy. And Burger thought highly of Blackmun. Blackmun was a decent man, consistent, wedded to routine, unlikely to venture far.
Neither Nixon nor Mitchell asked Blackmun about his judicial philosophy. The judge had three daughters in their twenties. Nixon asked if any were "hippie types." Blackmun assured him that none was.
He saw his lifelong friendship with Burger as his greatest potential problem. They had gone to grade school together, and Blackmun was best man at Burger's wedding in
1933.
After Burger came to Washington in
1953,
they corresponded, and they saw each other when Burger came to Minnesota to visit his family.
"Look," Nixon said, "you two grew up together. Your paths separated when you went to different high schools. But you have remained good friends. I don't see anything wrong with that." He wanted to go ahead. The administration was ready for an offensive. A detailed financial report on Blackmun was released to the Senate Judiciary Committee.
Nina Totenberg, who covered the Supreme Court for the weekly newspaper the
National Observer,
was one of Washington's most aggressive reporters, unwilling to settle for the usually placid Court coverage. A specialist in digging out behind-the-scenes detail, Totenberg flew to Minneapolis to interview Blackmun's eighty-five-year-old mother. Mrs. Blackmun told Totenberg that the Chief Justice and her son talked to each other on the telephone almost once a week. They talked about all sorts of things, legal, political.
In an article Totenberg wrote that Mrs. Blackmun had recounted how once, the previous year, the Chief Justice had issued an open invitation to her son, "telling him that any time he needed assistance in sorting out recent Supreme Court decisions, he, the Chief Justice, would be glad to help. But Judge Blackmun, says Mrs. Blackmun, quickly declined the invitation, making it clear to the Chief Justice that he did not think receiving such assistance would be proper."
Blackmun was enraged at Totenberg. His relationship with Burger was the thing he was most sensitive about. For a moment, he considered withdrawing from the nomination. But Blackmun was ready when he faced Eastland's Senate Committee on April
29.
He was tense, but determined to be candid. He knew the key was to show no arrogance, to be self-effacing. It came naturally to him.
Some of Haynsworth's opponents were chagrined at the fact that they were now supporting Blackmun. Haynsworth's alleged conflicts of interest, in retrospect, had not really amounted to more than the minor technical conflicts of interest involving Blackmun, a point Southern Senators could not resist making.
Blackmun was in Minnesota on the day of the final vote. He was trying to finish his appeals court work when two large canvas bags of cert petitions arrived from Washington. Burger soon called. "Did you get your mail?" he asked.
"Yes," Blackmun said jovially. "What's the idea?"
"You've got to go to work."
"I've got plenty of work out here," Blackmun said jokingly. "You're not my boss yet."
Burger wanted him in Washington before the term ended the next month. After a full year with only eight justices, nearly two hundred petitions for review had been held for "Justice X." In many of these cases, there were three votes to grant a hearing and Blackman could supply the fourth. On cases that questioned the constitutionality of the death penalty, the feeling had been that the Court should not even grant a hearing until it was certain there would be nine members to review the cases.
Blackmun was overwhelmed at the prospect of making so many important decisions. When he was working on the appeals court, there was always another review authority, the Supreme Court, to correct any mistake he might make. Now, on these two hundred cases, it would be solely up to him. Blackmun was very cautious in dealing with the pending cert petitions. Burger did not want to take many of the cases. Blackmun finally voted to grant hearings in only three or four. Brennan was disappointed and concluded Burger had another vote.