"Justice Harlan, you just denied your sheet," the clerk said gently, pointing to the scrawl on the linen. Harlan smiled and tried again, signing the paper this time.
Black didn't want to see any visitors. He was convinced that he was going to die. Nixon sent a letter saying he wanted to pay him a visit. Black declined. Burger came by to chat but Black didn't respond. Harlan tried repeatedly to cheer Black, and he failed.
"I can't see," Black told one of his sons. "I've got to quit. .
..
And I'll tell you something else, John Harlan can't see a thing. He ought to get off the Court, too."*
Black's major concern, from the moment he entered the hospital, was to make sure that his most private papers, memos and conference notes were burned. Publication would inhibit the free exchange of ideas in the future. He felt that he had been treated unfairly in the late Justice Harold H. Burton's diary, in which Burton had written that Black at first resisted desegregation. Black had also been shattered by the biography of former Justice Harlan Fiske Stone, written by Alpheus Thomas Mason. Black had told Burger that when he read Stone's biography, he had discovered for the first time that Stone couldn't stand him.
Black didn't want that kind of use made of his private papers. He ordered his son, Hugo, Jr., to burn them. His son stalled for a time, hoping that his father's condition would improve, but Black's health continued to deteriorate. His papers were finally retrieved and burned. On September
17,
Black's messenger delivered his letter of resignation to Nixon. He was eighty-five. He had served thirty-four terms.
At about the same time, Harlan received the news he had feared. The tests showed that he had cancer. Harlan decided to resign, but he delayed his announcement to avoid detracting from the attention and the adulation he knew Black would receive. On September
23,
Harlan submitted his letter of resignation. He was seventy-one and had served sixteen terms.
Two days later, Black died.*
With the Court down to seven Justices, the conference met quickly to revise its schedule. The Justices realized the Court might be shorthanded for some time if there were protracted confirmation battles.
A number of capital punishment cases, scheduled for argument the first day of the term only two weeks away, were the first to be postponed. Such cases would require a full nine-man court. In any case, Burger was interested in deferring as many cases as possible. With Harlan and Black gone, Douglas's anticipated votes to grant cert in the war cases were gone. Burger was certain that Nixon's new appointees would be natural allies.
But when the administration made its move, it seemed to Burger that Nixon had
learned nothing from the Hayns
worth-Carswell,disasters. The first name that was sent to the American Bar Association screening committee was conservative Republican Congressman Richard Poff of Virginia. The prospect was greeted unenthusiastically in legal circles. It seemed unlikely that the A.B.A. committee would give Poff anything approaching a strong endorsement. Poff quickly withdrew his name.
Other possibilities were leaked. One that caused an uproar in the press and legal establishment was Democratic Senator Robert Byrd of West Virginia. Nixon wanted Byrd's name sent to the screening committee, even though
* The minister selected to deliver the eulogy went to Black's library and found various books that Black had underlined, including
The Greening of America,
by Charles Reich, one of his former clerks. The minister selected some of the underlined portions to read at the funeral. During the eulogy, Brennan gently nudged Stewart. "Hugo would turn over in his grave if he heard that," Brennan said. Only Black's intimates knew that Black thought Reich's book absurd, and that Black underlined the sections he
disliked.
Byrd, a law school graduate, had never been admitted to the bar and had never practiced law.
From the hospital, Harlan expressed his concern to Stewart about the men being mentioned as possible successors. They were both puzzled by Nixon's seeming willingness to denigrate the Court by once more nominating lackluster, even obviously unacceptable, candidates. The rest of the Court shared Harlan's worry.
Nixon had two criteria. He was still looking for a Southerner, and he wanted another "first" for his administration. He wanted to appoint the first woman to the Court.
Mitchell quickly came up with a male candidate from Arkansas, a local municipal bond lawyer, Herschel Friday. On Thursday afternoon, October
7,
Mitchell and Rehn
quist interviewed him. The following morning, they interviewed their top woman candidate, Mildred Lillie, a California Court of Appeals judge.
The White House counsel, John Dean, was sent to interview the candidates. Mitchell had lost some credibility with the President in the wake of the Haynsworth and Carswell failures. Friday was a good lawyer, Dean reported, but he would make Carswell look good as a Senate witness. He knew very little constitutional law and would have trouble being confirmed. Lillie had similar problems, Dean said. The A.B.A. committee probably wouldn't approve her, since she lacked sufficient judicial experience.*
Rehnquist was also unimpressed. "Christ, we've got to be able to do better than this," he told Kleindienst. He preferred New York Court o
f Appeals Judge Charles D. Brei
tel, a brilliant conservative jurist.
But Mitchell was satisfied. On Tuesday, October
12,
he sent the names of Friday and Lillie to the A.B.A. committee.
Burger was increasingly worried. Another Nixon attempt to appoint someone without qualifications, leading to another drawn-out battle with the Senate, would severely damage the Court's prestige. The possibility that the Court might have to limp along for an entire term with seven justices, because of White House bungling, was intolerable. The Chief had discussed the need- for prompt and careful selection of candidates with Mitchell on several occasions
* See John Dean,
Blind Ambition,
p.
50.
since Black's and Harlan's resignations. The message didn't seem to be getting through.
On October
13,
Burger once more tried to get the point across in a "personal and confidential" letter to Mitchell. Burger asked Mitchell and his "client" (Nixon) to keep the Court's needs in mind. "It is beyond dispute, I think, that the Court as an institution has been sorely damaged in this last decade."
Reminding him of the embarrassment caused by L.BJ.'s effort to replace Chief Justice Warren with Fortas, and the subsequent scandal over Fortas's finances, Burger noted that the "completely unwarranted rejection of Judge Haynsworth and the subsequent rejection of Judge Carswell were also bruising episodes.
"The loss in September of two strong and able Justices— one of whom had become virtually a legend—is a blow of a different character but, nevertheless, a new injury to the institution," Burger said. The Chief said that he understood Nixon's desire to appoint a woman to the Court, but argued against a "woman appointed simply because she is a woman."
Burger also expressed sympathy for Nixon's wish to appoint a Southerner. "As I indicated to you in our conversation some weeks ago and again more recently, I recognize that geographical factors cannot be ignored by the President."
The Chief proposed that the President consider two candidates from the South in addition to Herschel Friday, whom he described as an attorney of "very superior professional qualifications." One was Lewis Powell, sixty-four, a private attorney in Richmond and a former president of the A.B.A. The other was Federal District Judge Frank Johnson of Alabama, a liberal with a strong civil rights record. Burger also put forward the names of seven other judges from the Northeast as possibilities.
The following afternoon, Mitchell and Burger met in the Attorney General's office. Two hours later, Mitchell told reporters that the administration was considering nine candidates besides Friday and Lillie.
By Monday, October
18,
the head of the screening committee reported that the main candidates, Lillie and Friday, would have serious trouble getting A.B.A. approval. The formal vote would be on Wednesday. Nixon and Mitchell didn't wait. At
8:20
a.m
. Tuesday, Mitchell phoned Lewis Powell at the Waldorf-Astoria Hotel in New York. "I am authorized by the President to offer you an appointment to the Supreme Court," Mitchell said.
Powell declined. He reminded Mitchell of a letter he had written shortly after the Carswell defeat. At the time he had heard that he was on a small list of those under consideration, and he had written Mitchell to say that he didn't want the job, that at sixty-two he was too old to begin a new career. Now, Powell reminded Mitchell, he was two years older.
Mitchell was aware of the age problem. The President had agreed when Powell's name came up two years earlier that he was too old. He wouldn't have enough time on the Court to really influence it. But now the situation was more urgent. Powell could get confirmed.
Mitchell asked Powell if he would remain by the phone and promised that he would call him back at
10:30
a.m.
Powell waited. It was almost
11:15
a.m
. when Mitchell called to ask Powell to reconsider. Powell declined again.
Solicitor General Griswold suggested to Mitchell that Powell might react differently to a direct appeal from the President. Powell had barely arrived home in Richmond that night when the phone rang. It was the White House. President Nixon pushed hard. Powell had a "duty" to accept—a duty to the South, to the law, the Court, the President, the country, Nixon said.
Powell told him that he would consider it, but even as he said it, he realized that he couldn't turn down the President.
Powell had been offered Hugo Black's seat. A candidate was still needed for Harlan's. Kleindienst got ready to review the likeliest nominees with Mitchell. Rehnquist, who had participated in most of the meetings, was also preparing for the meeting when Kleindienst told him to forget it. "We're going to be talking about you," Kleindienst said.
Nixon had certain concerns about nominating Rehnquist. It would look like an "in-house" appointment, and Rehnquist was relatively unknown in establishment legal circles. A former clerk to Justice Robert Jackson in
1952,
Rehnquist had practiced law for sixteen years in Phoenix where he was part of the Goldwater wing of the Republican party. He had joined the Justice Department to head the Office of Legal Counsel as an assistant attorney general in
1969.
He had been, in effect, Attorney General Mitchell's lawyer.
Nixon had some trouble remembering Rehnquist's name; he once called him "Renchburg." He was also somewhat taken aback by the easygoing lawyer's appearance, once referring to him as "that clown" because of his long sideburns and pink shirts. But Rehnquist was very bright and extremely conservative. And at forty-seven, he could be expected to serve many years.
On Thursday night, October
21,
in a televised address, Nixon announced the norninations of Powell and Rehnquist
Nixon thought Powell would be confirmed easily. He was a native Virginian and he had impressive credentials: Phi Beta Kappa from Washington and Lee College in
1929;
first in his class at Washington and Lee Law School after completing the three-year course in only two years; a year of graduate work at Harvard Law School; private practice with a prestigious law firm; directorships in eleven major corporations; President of the A.B.A. in
1964-65;
President of the American College of Trial Lawyers,
1968-1970;
and member of Lyndon Johnson's National Crime Commission.
Powell was a political moderate. As Vice-President of the National Legal Aid and Defender Association, he had played an important role in securing organized bar support for legal services for the poor. As Chairman of the Richmond School Board from
1952
to
1961,
he kept the Richmond schools open in spite of segregationist pressure to close them in the wake of the
Brown
decisions.
Rehnquist too had excellent credentials: an undergraduate and master's degree from Stanford; a master's in history from Harvard and Editor of the
Law Review
at Stanford Law School.
But Rehnquist might have more trouble than Powell in getting through the Senate. Richard Kleindienst, the Deputy Attorney General, had brought him to Washington in
1968
to serve as Assistant Attorney General to advise the department on legal strategy. He had performed brilliantly for the administration—justifying its anticrime measures, its wiretapping of domestic radicals, and the mass arrests during the previous spring's demonstrations. Rehnquist might have done his job too well. He might run into fire from congressional liberals. Blacks also seemed certain to oppose his nomination. Rehnquist had testified against a Phoenix civil-rights act as recently as
1964,
and in favor of limited school desegregation in
1967.
But Nixon had a plan: the two nominations would be sent to the Senate as a package. Powell's supporters worked hard to untie the knot, to try to see that Powell and Rehnquist were not even so much as photographed together in visits to Capitol Hill. Shortly after his nomination, Powell and a group of supporters called on the Senate Judiciary Committee chairman, the conservative James Eastland.