Nixon's Court: Its Making and Its Meaning

IN the new scale of Nixonian surprises, it registered only as a medium astonishment. Yet the President's nominations to fill the two vacant Supreme Court seats were delivered last week in a shrewd performance that left his critics, for the moment, in contortions of simultaneous dismay and relief.

For days a bitter storm had been rising over the evident mediocrity of the candidates the President was considering for the distinguished chairs of John Harlan and the late Hugo Black. As Nixon settled behind his desk in the Oval Office to announce his choices over television, he was almost universally expected to appoint Little Rock Lawyer Herschel Friday and California Court of Appeals Judge Mildred Lillie--nominees widely regarded as obscure and unsatisfactory. It looked like Haynsworth and Carswell all over again, some Senators predicted, with another vitriolic fight over confirmation. "As a group," Edward Kennedy had said, the six candidates Nixon was known to be considering reflected "utter contempt for the court."

Warren's End

In a little more than a quarter of an hour, Nixon overturned these expectations and very probably accomplished an enduring the change in American judicial history. In Assistant Attorney General WIlliam H. Rehnquist and Richmond Lawyer Lewis F. Powell Jr., the President appointed men who confirm to his standards of "judicial conservatism." Yet, especially in comparison with the dimmer talents that he had been considering, Rehnquist and Powell possess sufficient legal distinction to still most professional criticism and make their Senate confirmation seem probably.

If confirmed, Rehnquist and Powell will join the President's two other appointees, Chief Justice Warren Burger and Justice Harry Blackmun. The Old liberal, activist Warren majority has now shrunk to three: Justices William Brennan Jr., 65: Thurgood Marshall, 63; and William O. Douglas, 73. Holding four seats, the conservative Nixon Justices will also be a minority, with the balance of power exercised in the middle by Potter Stewart, 56, and Byron White, 54. But the bench will have been heavily tipped to the right by the Nixon bloc. It is now virtually a Nixon Court.

The process that eventually yielded Rehnquist and Powell last week began shortly after Nixon took the oath of office. Knowing that he would have at least one seat to fill--Warren had announced he was retiring--Nixon asked Attorney General John Mitchell to prepare a list of names consideration. For several weeks early in 1969, Deputy Attorney Richard Kleindienst and his aides researched the records of lawyers, judges, and law professors across the nation. They were guided by three basic criteria. The first was Nixon's preference for prior judicital experience--a requirement he waived last week for Rehnquist and Powell, neither of whom has had experience on the bench. Next, the president wanted comparative youthfulness; again, Nixon relaxed the standard case of Powell who is 64*. (Rehnquist is a comparatively youthful 47.)

Twin Defeats

The President's third and most important requirement was that the nominee fit his definition of "strict constructionism." The term is elusive and, to some, meaningless. Says the University of Chicago Law School's Harry Kalven: "The Constitution is full of grand ambiguities. How can you have strict construction of a grand ambiguity? The real issue is: What is responsible justice?" Last week in his television speech, Nixon suggested his own definition: "It is my belief that it is the duty of a judge to interpret the Constitution and not to place himself above the Constitution . . . He should not twist or bend the Constitution in order to perpetuate his personal, political and social views."

Kleindienst assembled a master list of more than 100 names, weighted in favor of judges. Only two or three women were on it. Many judges were excluded on grounds of age (65 or older) or ideology (too liberal and activist). Kleindienst pared the prospects down to 30, then, with Mitchell, reduced it to five. From that list, Nixon selected Burger and Haynsworth. Carswell and Blackmun were taken from the list of 30. In replacing Earl Warren, the President encountered no difficulty when he appointed Burger, a solid and magisterial Minnesotan. It was when he moved to fill Abe Fortas' seat with a Southern conservative that Nixon embarked on two of the nastiest fights of his presidency. Both South Carolina's Clement Haynsworth and Florida's G. Harrold Carswell were rejected by the Senate. The twin defeats infuriated Nixon, but he finally turned to Harry Blackmun, a diligent, uncontroversial Minnesota jurist who was quickly confirmed.

Nixon's first choice for a successor to Hugo Black was Virginia Representative Richard Poff, a Republican conservative admired for legal acumen by his colleagues in the House. The President was prepared to nominate Poff without further consideration. But the Congressman, who had said that his life's ambition was to sit on the Supreme Court, abruptly withdrew his name from consideration, unwilling to subject himself to the investigation and debate that he knew would follow. Mitchell then came up with Charles Clark of Mississippi and Paul Roney of Florida, both of whom Nixon had appointed to the Fifth Circuit Court of Appeals. Roney is a Republican lawyer with no prior judicial experience. Clark, a Mississippi lawyer, likewise had no earlier experience on the bench. Another Mitchell suggestion was Herschel Friday, a prominent Little Rock attorney who for 14 years had compiled a record of unsuccessful efforts to defend Arkansas school boards against desegregation. His firm's fees for such cases amounted to some $220,000.

Heated Outcry

A fourth name, from a border state, that of West Virginia's Senator Robert Byrd, appeared on the list of prospects, but he was never under serious consideration. After Nixon accompanied Byrd two weeks ago on a one-day trip to West Virginia, the Washington Daily News reported that Byrd was the President's personal choice for Black's seat. The report was false; the White House assumption is that the Senator or his political allies floated the rumor, and to avoid antagonizing Byrd, who is the Senate majority whip, the Administration added his name to the list submitted to the American Bar Association for prior consultation. The gesture considerably heated up the outcry against the entire slate, since Byrd was once an active organizer for the Ku Klux Klan, had only earned his law degree--from night school--in 1963, and had never been admitted to the bar.

When John Harlan announced his retirement a week after Black, Mitchell and Kleindienst did not feel bound by any regional requirement. Speculation began about filling Harlan's chair with the court's first woman Justice. Women's groups lobbied for the idea, and Pat Nixon told a reporter: "If he doesn't appoint a woman, he's going to have to see me." Thus, for the first time, Mitchell and Kleindienst had to ignore their list. All the qualified women, they felt, were either Democrats or liberals.

If the Woman Cries

Finally, Mitchell and Kleindienst agreed on Mildred Lillie, a diligent and attractive California Court of Appeals judge with a firm record on law-and-order. As a Los Angeles County Superior Court judge in 1951, it was Mrs. Lillie who denied Ingrid Bergman permission to have a summer visit from her daughter, Pia Lindstrom, after the actress had left her family for Roberto Rossellini. In divorce cases, Judge Lillie practiced marriage counseling from the bench; one of her theories was that if the wife was crying at the hearing, the marriage could be saved. Her talents as a legal thinker were, many experts agreed, pedestrian.

The Administration chose a list of six candidates* to send to the American Bar Association's Committee on Federal Judiciary. After the defeat of Haynsworth and Carswell, the Administration had arranged to have the A.B.A. investigate possible nominees before their names went to the Senate. Nina Totenberg, a reporter who covers the Justice Department and the Supreme Court for the National Observer, learned that a list of possible nominees had been sent to the A.B.A.'s judiciary committee. "I put in about 50 calls to courts and law schools all over the country," says Miss Totenberg. After five hours on the telephone, she had assembled the complete list and sent it out on the Dow Jones news wire. Oddly enough, she talked frequently with Rehnquist that day but got no intimation that he was under consideration. He did not know it himself.

When the list became public knowledge two weeks ago, lawyers, newspapers and magazines across the nation set up an incredulous outcry. Thirty-four Harvard Law School faculty members signed a petition protesting the nominees. Even conservative Republican Senators who had battled for Carswell were privately contemptuous. As the uproar continued, it became clear that even most of the White House staff regarded the choices as a disaster. John Mitchell held a background briefing for reporters in his office. Actually, he said, 15 names were under consideration. But that was a smokescreen. The fact was that Nixon meant to nominate Herschel Friday and Mildred Lillie.

Then came the most damaging criticism. The A.B.A.'s judiciary committee, a broadly varied group of twelve lawyers from across the nation, completed its investigations of Friday and Lillie. By its rules, eight of the twelve must approve in order that a nominee be deemed qualified. The committee split 6-6 on Friday. On Judge Lillie, the vote was 11-1 against. The White House mood was one of barely controlled fury. Nixon's congressional-liaison team advised the President that he would face another ruinous battle in the Senate if he stuck with Friday and Mrs. Lillie. For Nixon, who told aides that his court appointments would determine his place in history, it had the lineaments of one of his Six Crises.

Even before the A.B.A. committee's report, the extraordinary criticisms aroused prompted Mitchell and Nixon to begin thinking of alternatives. Last Tuesday, Mitchell called Powell and told him that the President wanted him for the court. Then, at 8 p.m., Nixon called and repeated the offer, saying that while he knew Powell had reservations because of his age, it was in the nation's interest that he should accept. Powell replied he wanted to think about it overnight. He did so, and late Wednesday he accepted the appointment in a call to Mitchell.

Nixon and Mitchell conferred by telephone on the situation until midnight Wednesday. Although they were more or less certain of Powell, there obviously remained some question about the final ticket that the President would present. Some time between midnight and 8 a.m., Nixon tape-recorded a draft of the TV speech he was to deliver. He gave the tape to his valet, Manolo Sanchez, who took it to Nixon's secretary, Rose Mary Woods. She typed one copy and returned it to Nixon. The President spent much of Thursday alone in his sanctum in the Executive Office Building next door to the White House, working on the single existing copy of his speech, which he edited and polished until just before his broadcast at 7:30 p.m.

Savored Suspense

An extraordinary secrecy prevailed. Nixon was angered by the disclosure of his list of six. White House advisers did not learn of the new choices until just before the broadcast. Nor did Herschel Friday and Judge Lillie, who got the word just an hour before the President went on television. Rumors caromed through the White House. The President himself, rather theatrically, said later: "I didn't know until the last minute which way I would go." At 7:21, the Associated Press sent out a bulletin that Nixon was about to appoint Rehnquist and U.S. Court of Appeals Judge Arlin Adams of Philadelphia. A few moments later, Nixon went on the air.

The President plainly savored the suspense. He began with what seemed a deliberately tantalizing roll call of the kinds of people being urged on him for the court--Senators, Congressmen, a woman. He delivered a short lecture on "judicial conservatism." Finally, to the general bewilderment, he recited the name of Lewis Powell, then that of William Rehnquist. After the months in which his Supreme Court nominations had been condemned as second-rate, Nixon relished repeating the words excellence and distinction.

Natural Counter

To Nixon's jubilation, his choices came close to producing utter surprise. White House advisers insist that although Friday and Lillie had been the leading candidates, a back-up list included Rehnquist and Powell. An understandably Machiavellian theory immediately surfaced that Nixon had deliberately sent out his list of six while intending all along to nominate Rehnquist and Powell, their names preserved from advance criticism. In that way, according to the theory, the less than distinguished earlier possibilities would make the final choices seem, by comparison, Olympians of the bar.

But the theory was wrong. Except for the A.B.A.'s adverse reports and the accumulation of criticism from other quarters, Nixon would have nominated Friday and Mrs. Lillie. When those two main candidates became too much of a political risk, Nixon and Mitchell fished elsewhere. Powell, as a former A.B.A. president and an impressive legal figure who had long been among the Administration's candidates, was a natural counter to the "mediocrity" argument.

The case of Rehnquist is more intriguing. He was, ironically, one of the chief architects of Mitchell's list of nominees, working closely with Kleindienst. Rehnquist seems to have had a strong internal White House lobby advertising his gifts. In any case, it was a sign of either haste or secrecy that Rehnquist's three children, watching the President's address, gasped when they heard their father's name. It was the first they knew of his nomination.

Nixon's abandoning his earlier list came as a relief even to his own Cabinet. One Cabinet officer exclaimed after the speech: "Thank God the parachute opened!" The episode was a measure of Nixon's growing sense of self-confidence. The White House staff regarded it as a triumph. "In the end," said one adviser, "he opted for excellence. I got the clear impression that the President was saying, 'I'll never appoint another Carswell. I'll never appoint another mediocrity.' " The notion was not entirely convincing. He had been prepared to nominate two legal figures with less than distinguished credentials.

In all, Nixon emerged looking somewhat better than he deserved. As soon as the President had ended his speech, Mitchell released the text of a letter canceling the Administration's arrangement to consult the A.B.A. before making any further nominations. Because the names were leaked, Mitchell said, the process could not work. There was some sense that the Administration was trying to shift the blame for the quality of the candidates on to the A.B.A. What role the A.B.A. should play in nominations is a tough question. Friday and Mrs. Lillie now find themselves stigmatized as "unfit." It can be unseemly and even a bit cruel to subject potential candidates to such sudden and often aggressively hostile scrutiny.

But as the A.B.A.'s Lawrence Walsh argues, it makes good sense to circulate names of possible Supreme Court candidates before nomination. For one thing, opinions are much more candid than they would be if a man is already appointed and confirmation seems likely. Besides, Government secrecy is already several chapters past the ludicrous. Why should Supreme Court nominations be treated with the obscure Price Waterhouse precautions of an Academy Award selection? However embarrassing, the process of prior consultation in this case worked to the advantage of the court and of Nixon himself.

Blunted Shift

In his speech. Nixon sportily called the Supreme Court "the fastest track in the nation." But the better analogy is not to horse racing but to football, one of the human experiences that genuinely excite the President. He huddled with his players, called a play, went to the line, read the defense like a good quarterback and then called an audible from scrimmage: an end sweep.

The opposing team, as Nixon intended, seemed at least temporarily baffled. Edward Kennedy, like other Senate liberals, was almost flat-footedly cautious, saying that he was glad Nixon"has pulled back from the brink he was approaching." Edmund Muskie, the front-running Democratic presidential noncandidate, declared: "I'll approach the nominations with a positive attitude." Senate Republicans sighed in relief. Said G.O.P. National Chairman Robert Dole: "They'll sail right through."

Not quite. Of the two nominees, Powell seems "cleaner." He does not appear to be heading for trouble with civil rights groups, since he has a reputation as a racial moderate. Rehnquist, however, will probably invite closer examination because of his role as a Justice Department spokesman endorsing the mass arrests last May Day in Washington, and because of his resolutely truculent views on the rights of dissent.

In Nixon's view, "the delicate balance between the rights of society and defendants accused of crime"--as he put it in his TV address--now needs to be tipped toward society. "As a judicial conservative, I believe some court decisions have gone too far in the past in weakening the peace forces as against the criminal forces in our society." With two of his nominees sitting since last year, the process had already begun to be reversed. Aryeh Neier, executive director of the American Civil Liberties Union, recalled last week that the A.C.L.U. generally won 80% of its cases during Earl Warren's Chief Justiceship; last year the ratio was down to 50%. With the two new appointees, Neier guesses, "our win rate will probably decline further."

Indeed, it is clear beyond argument that the liberal activism that characterized the Warren years is now at an end. But the shift to a new direction that will follow the likely confirmation of Powell and Rehnquist will not necessarily be sharp or immediate.

New Justice Syndrome

Actually, in the short run the President's cause may have suffered a minor setback. The court is scheduled to hear arguments this term on the Administration's contention that it needs no warrant to wiretap persons who it decides are a threat to national security. Rehnquist had been active in the Justice Department during its preparation of the case, and so will probably have to disqualify himself. Since the late Justice Black would probably have supported the Government position, the Rehnquist disqualification will cost the Administration a vote that could be crucial. Rehnquist may similarly have to bow out of some other important cases involving the Government.

Also operating to blunt any sudden shift by the court will be the "new Justice syndrome." Stanford Criminal Law Professor Anthony Amsterdam, a former Felix Frankfurter clerk, explains: "Any time you have a closely divided court and you have one or more replacements, for a time you have an unsettled power balance. People are feeling each other out, seeing where they go, realigning, seeing who their comrades are. There is a kind of disinclination to put people on the spot, to take polar positions which force new people to define themselves."

Nonetheless, a coalition of the four Nixon nominees will almost certainly emerge. Warren Burger and Harry Blackmun have already displayed astonishing unanimity, differing only on one major case last year. Though he is not likely to prove quite so imitative, Powell can be expected to fit often into the Burger-Blackmun approach, which one constitutional law professor describes as "an intuitive sort of conservatism." Not so Rehnquist. His legal conservatism, according to friends, is already highly developed along a more philosophically purist line; he is thought to be more likely than the other three to follow his convictions to the bitter end, regardless of the practical consequences. Despite differences in their lines of reasoning, most of the time the four will vote for the same result--and in the opinion of virtually all court scholars, will frequently attract the extra vote needed to make a majority. What, then, will the court be saying? Likely answers in two major areas:

CRIMINAL LAW. This is the President's special concern, and it is where the court can be expected to retreat most notably from some of the ground broken by the Warren court. The principal target will be the Miranda decision, which requires police to inform suspects of their rights to silence and to counsel. Most authorities--except the police themselves--agree that Miranda and other Warren court decisions have not hampered law enforcement efforts appreciably, if at all. Stanford's Amsterdam claims that in practice the rights are meaningless. One federal trial judge is now betting all comers a quarter that Miranda will be reversed outright. Others have suggested that it will simply be eroded. The right to counsel can probably not be materially cut back; whether it will be extended is another matter. The right to a unanimous jury verdict in criminal cases is also before the court and may go down in the name of increased courtroom efficiency. A possible major target for the future: the current rule that illegally obtained evidence cannot be used.

RACE. Here the experts feel that there will be little retreat. Last spring's authorization of busing in once-segregated Southern school districts was unanimous, and the principle of social equality seems too firmly established both in legislation and in the court's long line of constitutional interpretations since 1954's Brown v. Board of Education. Says Jack Greenberg, director-counsel of the N.A.A.C.P. Legal Defense Fund: "I think the court will protect racial minorities as it has historically. One of the things about conservatives is that they follow precedent." Precedent, however, is not strong on Northern-style de facto segregation, and the court may well not feel required to press into such new territory.

Generally, in fact, except on criminal questions and perhaps on obscenity, the court will not retreat in major ways from Warren court decisions. Observes Constitutional Law Professor Philip Kurland of the University of Chicago: "After you break an egg, you can scramble it. but you can't put it back together." Instead, the Justices will simply not march onward.

"The court will be less venturesome in staking out new positions," contends Kurland's Chicago colleague, Phil Neal. As a result, new constitutional claims by a variety of special-interest groups--tenants, ecologists, the poor, welfare recipients, consumers--are not likely to be warmly received. A similar desire to stay out of new constitutional waters may well doom such pending contentions as the claim that the death penalty is cruel and inhuman punishment, thus a violation of the Eighth Amendment.

Whatever other dangers the new course may contain, the Nixon court will not be issuing the sweeping sort of constitutional commands that even some liberal critics of the Warren era thought amounted to judicial legislating. And with the court out of the legislating business, it is at least possible, though not necessarily probable, that state and federal legislatures will take up some of the issues that used to reach the Justices by default.

But should the legislatures pass sweeping or innovative measures, will the Supreme Court go to the activist conservative extreme, striking down the new laws as unconstitutional--as it did, for example, with much New Deal legislation in the 1930s? Last year Burger and Blackmun voted to invalidate Congress's extension of voting rights to 18-year-olds before the constitutional amendment had passed. Even so, many students of the court detect an air of passivity in the new alignment and this suggests a seeming paradox: the court may not actively resist legislative initiatives.

In fact, the practical impact of the Nixon-wrought shift will not be the true measure of what the President has done to the court. Just as Nixon has too broadly implied that expanded protection for defendants caused rising crime rates, so has he created false expectations that by changing the court's makeup, he will bring about a decrease in lawbreaking. In a more subtle sense, however, the court's new pose will undoubtedly have the psychological effect of lending added respect to the political drive for law-and-order.

Intellectual Rigor

It is none of Burger's doing that the court is today regarded by so many disinherited Americans as the last resort, and perhaps it ought not to be. The Chief Justice appears to feel that state and lower federal courts should deal with narrow issues, while the larger social problems should be resolved through the legislative process whenever possible. Liberals may agree with this theory, but they fear that as a practical matter, majority-oriented politics will not adequately champion the rights of the individual. The new court may nonetheless force liberals to use politics more vigerously, rather than the judicial process, to press their ideals. What is more, a new conservative standard of intellectual rigor on the court may compel liberals to greater precision of thought on their own.

Nixon's great court transformation could amount to no more than merely a changed voting majority. If his appointees insist upon only a dogmatic style of political conservatism, they will have failed the country and missed a great oppotunity. To avoid that danger, Justices will have to provide a creative, deeply reasoned philosophy of judicial restraint in the tradition of Justices Frankfurter and Louis Brandeis. It will be imperative that they explain clearly and compellingly the theory government that is leading them to change the court's function. That is why the President's 23rd-hour decision to step up from mediocrity in his court choices was such a profound relief to all who care about the law in the U.S.

*Although her name appeared on the list of possibilities, District of Columbia Superior Court Judge Sylvia Bacon was never seriously considered.

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