The Wars of Watergate (29 page)

But Nixon also contended that his “constitutional responsibility” of appointment was frustrated by senators who wished to impose their philosophical views on the process. The Senate, he insisted, had violated the proper constitutional arrangements for appointments—and for personal reasons. With vintage self-pity, Nixon rhetorically asked whether he would be “accorded the same right of choice in naming Supreme Court justices which has been freely accorded to my predecessors of both parties.” In this the President simply was wrong: the Senate had rejected twenty-four Supreme Court nominees—nearly a fourth of the total number of justices in American history until that time. The framers had a specific intention in their requirement of Senate “advice and consent” to nominees. Alexander Hamilton wrote at the time of the adoption of the Constitution that “the possibility of
rejection would be a strong motive to care in proposing.” Nearly twenty years after the Haynsworth and Carswell votes, a more popular president than Nixon realized the virtue of consulting in advance the Senate leadership before proposing a nominee.
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The President subsequently nominated Judge Harry Blackmun of the Eighth Circuit Court of Appeals. Some senators worried that the nominee would prove only a twin to his fellow Minnesotan, Chief Justice Burger, but Blackmun’s record appeared competent and workmanlike. Above all, it generated little controversy. Republican Senator Robert Dole complained to the President about naming a second Minnesotan and another nominee in his sixties, but he went along with the nomination.

The President had his own way of saving face in the Blackmun nomination. He told Haldeman to have somebody like Senator Hruska praise the nomination as that of a man who shared the same constitutional philosophies as Haynsworth and Carswell. “This line,” Nixon said, must have the “highest priority with our whole Congressional and PR staff.” He wanted it known that Blackmun was to the right of the other candidates on law and order and “very slightly to the left only in the field of civil rights.” He did not want the nomination in any way to appear as a concession to liberals or to indicate that he “was forced to back down by the Senate and name a liberal or even a quasi-liberal.” This project, he instructed Haldeman, had “the highest urgency.”

Meanwhile, Justice Potter Stewart counseled the President to meet Blackmun, to understand what kind of man he had nominated. The President had not seen Haynsworth or Carswell, and Stewart thought unfamiliarity had led Nixon to mistake the quality of the men. Stewart forcefully reminded the White House that it is the President, not the Attorney General or his staff, who appoints Supreme Court justices.
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Whatever Nixon’s motives in naming Blackmun, the judge was confirmable, and the Senate unanimously approved his nomination. Ironically, Blackmun produced the Nixon Court’s most controversial decision with his 1973
Roe v. Wade
abortion opinion, one that since has been the important rallying point for conservative advocates of “strict construction.”

One week before the Senate rejected Carswell in April 1970, House Republican leader Gerald Ford leveled a variety of allegations concerning ethical and judicial improprieties against Associate Justice William O. Douglas, long the darling of liberals. Ford asked for a special committee to investigate the charges and determine whether they merited an impeachment. Ford intended that his proposal go to the conservative-dominated House Rules Committee, but the Democrats, in a parliamentary maneuver of their own, introduced an impeachment resolution, thus ensuring jurisdiction for the Judiciary Committee, which had a heavy representation of northern liberals.

Ford’s timing was hardly coincidental. A newspaperman friendly to Ford,
who later became his Press Secretary, described the move as a White House-inspired attempt to retaliate against Senate liberals for the defeat of Haynsworth and Carswell, and contended that Ford had been “tricked” into making the move. Nixon himself asked J. Edgar Hoover to brief Ford on Douglas. The Justice Department provided Ford with material for his original speech and subsequent ones. Ford later stated that the Justice Department gave him “leads” but then refused further cooperation. Yet he admitted periodic contact with Will Wilson, an Assistant Attorney General, and one of his staff acknowledged that Ford’s office had help from a middle-level Justice official who ran the names of some Douglas associates through the computer files. Ford at one point complained to White House aide Bryce Harlow that the IRS would not furnish him with information on Douglas “unless there is a
special
Presidential directive requiring that this material be provided.” Harlow told one of his assistants to follow through, “because there is some growing indication, involving Justice as well as IRS, of a low level bureaucratic attempt to frustrate a full-fledged investigation.” In other words, the White House wanted a serious investigation but once again allegedly found itself thwarted by a recalcitrant bureaucracy. Later, however, Wilson complained that “Ford took the material we gave him and screwed it up. Ford blew it.”
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Ford’s blunderbuss charges made it relatively easy for Judiciary Committee Chairman Emanuel Celler and Douglas’s counsel, former federal judge Simon Rifkind, to dismiss them as partisan and frivolous. Even if there had been merit and seriousness in the allegations, the clumsy, obvious hand of the White House and the Justice Department would have only lent an air of political vendetta to the proceedings. The whole affair backfired for the Administration (and for Ford personally); worse, it left a legacy that four years later came back to haunt Richard Nixon.

In his opening salvo against Douglas, Ford raised the question of what constituted an impeachable offense. “The only honest answer,” he responded, “is that an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.” Impeachment, Ford later argued, was a “protective,” not a “punitive,” device. It was meant to protect the nation from official misdeeds and need not involve criminal offenses, he said.
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Ford had a good deal of history on his side supporting those arguments, history that he and the President conveniently repudiated in 1974.

White House staff workers blamed Attorney General Mitchell and his department for badly advising the President on Supreme Court matters. Particularly critical was John Ehrlichman, who constantly sniped at the Attorney General. But the appointments and confrontations served a variety of presidential
political needs, including appeasing the South and publicly challenging congressional liberals. By late 1971, with two new nominations to submit and an election only a year away, the Administration could no longer afford mistakes.

Ehrlichman had his protégé Egil Krogh devise procedures to tighten the White House grip and influence on Court nominations, primarily at the expense of the Justice Department. Krogh told Ehrlichman that the President could not again “play catch up ball with a nomination.” Conceding initial selection and checkout procedures to Justice and the FBI, Krogh suggested that a White House unit be established to oversee the proceedings—with John Ehrlichman at the helm. Krogh devised roles for the President’s key men in securing future nominations: Clark MacGregor and William Timmons to handle Congress, William Safire to deal with the press, Charles Colson to brief various interest groups, and John Dean to coordinate the others. Krogh urged that David Young, his fellow Plumber—whom Krogh called “the one independent mind, very facile and penetrating”—should be heavily involved. Krogh also did not trust the FBI. He proposed “CIA-type debriefings” of two to three days for leading Court candidates, particularly emphasizing “
demeanor
evidence.” Finally, if the President submitted two nominations, the more difficult one should go first, Krogh wrote. Subsequently, someone—presumably Krogh—devised a questionnaire for candidates, including queries regarding their financial net worth, psychiatric background, family relations, possible “guilt by association,” knowledge of “enemies,” life-style, and specific positions on civil rights, criminal procedure, wiretapping, the right of privacy, subversive activities, and church-state relations.
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The White House knew that numerous members of the Court were in precarious health. Shortly after his sharp attack on the Nixon Administration for its attempts to censor the press in the Pentagon Papers case, Justice Hugo Black became gravely ill. He submitted his resignation in September 1971. A week later, Justice Harlan, nearly blind and debilitated by bone cancer, also resigned. It was a golden opportunity for the President, but he came perilously close to opting for mediocrity and confronting the Senate once more.

Nixon now found himself pressured from an unexpected quarter. His wife publicly stated that she was pushing for the nomination of a woman. “I’m talking it up,” she told reporters. “If we can’t get a woman on the Supreme Court this time, there’ll be a next time.” When her husband submitted two male nominees, Pat Nixon “strongly” told the President that he should have named a woman. “With exaggerated weariness,” according to his daughter, the President cut off the conversation, telling her: “We tried to do the best we could, Pat.”
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Indeed, there had been serious consideration of a woman.

The 1971 nominations witnessed a sharp struggle between those in the
White House who sought to exploit immediate political advantages even if doing so occasioned further conflict with the Senate, and those who tried to persuade the President to act for long-term political advantage and his historical reputation. Pat Buchanan argued for quick nominations “to head off mounting lobbies of women, blacks and labor.” He pressed hard for a southerner, asserting that Senator Edmund Muskie (the Democrats’ leading presidential contender) would have difficulty explaining away three antisouthern votes, especially if the nominee were a congressman.

Buchanan had a candidate: Richard Poff, a Virginia Representative, a member of the House Judiciary Committee, and highly respected among congressional southerners and conservatives. Poff had a problem, however: he had long ago signed the so-called “Southern Manifesto,” counseling resistance to the Court’s 1954 desegregation decision. Buchanan found that tantalizing, thinking that an “impeccable” nomination such as Poff’s would generate a Senate “mini-rebellion.” It would be a bitterly divisive issue for the Democrats: “either they kick their black friends in the teeth, or they kick the South in the teeth.” As long as the Administration nominated “qualified strict constructionists,” then the Democrats were “on the hook.” Buchanan also urged the President to reject Irving Kristol’s suggestion of University of Chicago President Edward Levi as a nominee. Buchanan thought there was no mileage in the President’s nominating a Jewish candidate; instead, he urged Nixon to find “the most brilliant and qualified Italian-American strict constructionist … and then name play up his Italian background—and let the Democrats chop him up, if they want.” Sectional wars, partisan wars, ethnic wars—they were all grist for Buchanan’s assault on Democratic senators.

Leonard Garment weighed in with his own political calculus. He thought that time was not of the essence; what was important was for the President to choose wisely and avoid a prolonged fight. Garment’s immediate concern was scuttling Poff. Poff’s views on race, women, and ethnics offered obvious rallying points for the Administration’s well-entrenched and vocal foes. The President needed Senate support for other items on the agenda; why needlessly antagonize? Garment appealed to Nixon to encourage an “open discussion” of candidates and to avoid “surprises.” Such discussion, he believed, would prevent possible embarrassment and indicate the Administration’s seriousness in finding the best-qualified nominees.
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Buchanan pursued the President’s heart; Garment went for his head. Meanwhile, the Administration’s internecine battle over Supreme Court nominees had become public, and Poff withdrew (probably in accord with White House wishes) to avoid a protracted battle. The President and his aides gave some consideration to nominating a Senator, hoping to simplify the confirmation procedure. Apparently, Howard Baker (R–TN) was given
an informal offer. In a more cynical vein, to annoy liberals Nixon let it be known that he was considering Senator Robert Byrd (D–WV).

Garment’s views did not immediately prevail; instead, a variety of sources pushed the candidacies of Mildred Lillie and Herschel Friday. Lillie was a Superior Court judge in Los Angeles who first had been touted to Nixon by Mayor Sam Yorty. The President had two of his aides convey the suggestion to Mitchell. Apparently the Attorney General believed that it constituted an endorsement, or at least an idea to be taken seriously. Assistant Attorney General Rehnquist certainly treated Lillie seriously and defended her judicial record.
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Friday was a Little Rock lawyer, known to Mitchell from their work together as municipal-bond attorneys. Beyond these vague links, neither candidate had much by way of recommendation; indeed, the American Bar Association indicated to Mitchell that it would not be able to endorse either Friday or Lillie. (Perhaps Lawrence Walsh, head of the ABA committee on Court candidates, remembered his public embarrassment when the committee endorsed Carswell.)

With the Lillie and Friday nominations, the Administration stood at the brink of another political and public-relations disaster. If the nominations were made, and without ABA support, the likelihood was that the Senate again would reject the President’s choices. This time, however, confrontation was avoided. Just before the ABA decision became a matter of public record, on October 21, 1971, the President nominated Lewis Powell, a Richmond, Virginia, lawyer and a past president of the ABA, and Assistant Attorney General Rehnquist.