Focus 580; The Renquist Choice: the Untold Story of the Nixon Appointment That Redefined the Supreme Court

On the Rehnquist thing the political mileage basically is the same kind of mileage if we were to go with Smith. The idea being that we are appointing a highly qualified man. That's really where it gets towed to and also he doesn't quite have the smack of a corporate lawyer as much as Smith I know you think more of a general practitioner on your judgment it is we're doing it. You raise that. I've just been thinking about it there are a lot of people who think so highly of the guy he was terrible. Oh you fixed that tremendously C'mon Mr. President a question about it and just as solid as can be he's made a tremendous impression upon the judiciary around here. You're going to run to the bar and there was an answer that it was written but I suppose you're damn Protestant. Sure sure there are superstars right but. Then back telling that you use religion to get baptized and castrated no they don't do that I mean that circumcision or that of the Jews reality like

that every year is getting 30 years ago on October 21st 1971 President Richard Nixon announced two nominees to the U.S. Supreme Court. There were a number of remarkable aspects to that announcement but probably the most remarkable was that until bad morning President Nixon didn't know who he was going to nominate it turned out to be Lewis Powell and William Rehnquist the latter which is today the chief justice of the Supreme Court. How it turned out that way is the subject of our conversation during this hour of focus. Our guide to the story is someone who should know it quite well. John Dean served as counsel to the president during the years in question. White House counsel that is. You may remember his televised testimony during the Watergate hearings. He is the author of two books on the Nixon years a blind ambition and lost honor. So if you're among the generations for whom Watergate is ancient history you might look for those as well. During this hour we'll talk with John Dean about his latest book The Rehnquist choice the untold

story of the Nixon appointment that redefined the Supreme Court just published by the Free Press published at the same time is a five CD Audio version of the book which includes some pretty interesting White House Recordings of the presidents and the other people involved in the story part of which we just heard as we talk during this hour with John Dean about this story you are invited into the conversation your questions are important and you can call us around Champaign-Urbana at 3 3 3 9 4 5 5 3 3 3. Well if you match the letters with the numbers we also have a toll free line. Anywhere you hear us around Illinois Indiana parts of the states our signal travels or via the Internet anywhere else. 800 to 2 2 9 4 5 5. Again locally 3 3 3 WRAL Well toll free 800 to 2 2. John Dean good morning. Good morning thanks so much for joining us. Pleasure to hear you use the tapes. That's the first time I'm

aware of have been broadcast. OK well we may may select some more parts of those to play as we talk. But just if you go in your book is is pretty impressive in this is recounting the details of the politics and intrigue behind the appointment of Supreme Court justices in the Nixon administration. Why is it important for you to tell this story. Well I was there of course but I didn't know the entire story and I didn't know the entire story until I went to the archives last fall and that was when they had released the last batch of the Nixon tapes a slice of which you just played didn't really cover the 34 day period in which Nixon filled the two vacancies he was confronted with in the fall of 1971. And I as I listened to the tapes I realized I said you know this is an amazing story first it's sort of a three part drama three act drama. Listen comedy in it if you will. And also it's an opportunity to take people inside the White House in a way they never have been before and probably never will be

again and to see a process that has gone on for 200 years is going to go on for a lot more years because we've long as there's a Supreme Court that we're going to be having presidents select justices. And this is a chance to really look at how they do it because it doesn't vary very much from president to president. So that's why I wrote the book. Sure. Well this is one of the aspects though that involves you and we don't want to get too ahead of ourselves but you had a key role in sort of you know presenting the possibility of William Rehnquist as a candidate. I did indeed actually. My my initial candidate was a man by the name of Richard Potts who had been a Virginia congressman. And I tell a story that's Act One is the story of why Dick POS didn't end up on the Supreme Court and he really had a lock on the seat. And it's a story that I thought needed to be told because it's a it's a unique story amongst politicians where he his own ambition he set aside for the benefit of the family. And it was a rather selfless act that he

withdrew to protect a son who had been adopted. Yet with an ironic twist at the end where. That fact would come outside that I thought that story needed to be told. And actually I just had a letter from Bob who is. It did become a justice but not on the United States Supreme Court he is a senior justice at this point on the Supreme Court of Virginia. Well we will talk more about that in your involvement. But maybe backing up a little bit let's talk about some of the the initial stories involved even describe how Richard Nixon sought to change the composition of the U.S. Supreme Court even before he became president. That's correct what I thought I had to do for the reader is to give him what I call the backstory and what happened before these two vacancies opened up. And I tell a story how it really started as early as nine hundred sixty eight during the 68 campaign when the fine hand of Richard Nixon really was very involved in

preventing Abe Fortas who was a sitting justice who'd been nominated to be chief justice by President Johnson to fill the seat of Earl Warren who was chief justice and was retiring. How Nixon was very involved in blocking the confirmation Fortas to become chief justice and then that left him with a a seat. That he would be able to fill in as president. This this this all happened as I say during the campaign during the waning months of the campaign. It was clear that Earl Warren had retired from the court because he realized that Nixon was going to win and Nixon had been out criticizing the Warren court not not Warren directly but certainly the decisions of the Warren court. So Warren thought you know obviously Nixon is not going to perpetuate what I've tried to do here and thought he ought to get off while John still has a chance right. It didn't work that way though.

Nixon actually encouraged a filibuster and it was the first time a filibuster had ever occurred to block the nomination of a justice of the Supreme Court. There hasn't been one since 68 and that when the Republicans really launched the first one and it did block Fortas block forces from becoming chief justice and that was followed by his resignation. Thought on the courts another part of the story right. Right. What I what I describe in the in the introductory material is really Nixon's effort to unpack the court if you will rather than pack the court. He was trying to make seats available for justices who had his philosophy. And when he did assume office the first thing he did is fill the seat in about six months to fill the the seat that Earl Warren had vacated and the first point was very it was somewhat uncontroversial non-controversial that was to the chief justice and that was filled by Warren Berger who was a sitting court of appeals just judge and was fairly well

respected and really did not see him as somewhat of a satirist. They did make a lot of waves and that was done very easily and swiftly. But four dismissed on the court and there was a rumor in Washington that he may have accepted some money from a foundation of a man who was under investigation so that that investigation was taken very seriously by the Nixon Justice Department. And indeed as I tell in the book there's an interesting story a little known activity by Bill Rehnquist giving John Mitchell as attorney general the sort of the legal basis upon which to investigate for this and then ultimately to really bluff him off the court. Let's talk a little bit more about that what was William Rehnquist's his position at this time and what did he actually do to sort of equip John Mitchell with the ammo

that he needed to sort of essentially you know force or at least bluff Fortas off the court the position that Rehnquist held was the assistant attorney general in charge of the Office of Legal Counsel. That is the post in the wall in the Justice Department that provides the legal opinions for the attorney general and sort of the often considered to be the attorney general's own lawyer or a little law firm within the in the Department of Justice for particular constitutional issues. And Bill Rehnquist had been a law clerk and Mitchell Not being a Washington type really did look to Rehnquist when this issue came up as to whether they could investigate Fortas and Rehnquist searched through old precedents because there really was no precedent. The traditional role of the Department of Justice is to wait for the Congress to

act which has the it has the only of constitutional authority to remove somebody from the Supreme Court and that is one of the impeachment clause. So they were really reaching and searching and as I explained in the book. The documents the key documents from this period have not reached the National Archives yet they're fairly conspicuously missing. But I was able to find a contemporaneous interview that Rehnquist and Mitchell had done with a journalist who had no idea what really was going on because of no reason to be suspect of anything at the time he was just trying to recount how Fortas had been removed or why he had you know the whole story and in the course of doing it had interviewed both Mitchell and Rehnquist and put together some of the basic facts and those facts show the memo or the legal theory that Rehnquist came up with that justified Mitchell investigating the sitting justice. And I find it to

be thin at best and very dubious precedent I mentioned some of it in the book a nice Law Journal article could be written on the subject of how there is virtually no authority for doing what they did. Let's emphasize the the unprecedented nature of this the just department had never gotten involved in. An investigating or trying to remove the Supreme Court justice in the past. That is correct. It had only been the role of the Congress before because of the Constitution and certainly there. The founders seemed to have the impression that the only route to remove the justice was to go through the impeachment route and the institutional wisdom of the Justice Department had always stayed out of this area and been very careful with any sitting what they call Article 3 Judge Article 3 being in the article in the Constitution it creates the federal judiciary and the one memo I cite that Rehnquist relied on. I didn't get into this in the book but why I say to make a nice Law Journal

article is he cites a precedent for an investigation of a sitting federal judge who was not in Article 3 judge but rather he was a constant he would have been created by the Congress for one of the. One of the territories the Northwest Territory back in the late or 18th century. And so he said Well way back for this president and it really wasn't a true precedent and that's why I say it's fairly dubious and frankly I was quite surprised that Rehnquist even undertook this and he worked on a worst case scenario where he assumed the worst case of the set of facts he could assume as being true. Could the department of go go forward well that seems to me a great leap right off that you assume the worst rather than giving a sitting justice the benefit of the doubt before you decide if you can even investigate him.

Sure. Well it wasn't just this legal work in the investigation that the. I undertook on this but as is the case in many hard hardball politics sort of scenarios there were leaks that got out about this and people started talking about and Ford has felt mortified. Well he did. And that combined with the leaks that were. You know it's are always very hard to say they were you know who did them but I have a pretty good idea where they were coming from and they were orchestrated right out of the department or out of the FBI one of the two. And they were they were designed to put the pressure on for us in addition to that. They said the Mitchell and other hardball act was to convene a grand jury to investigate Fortas his wife who was a tax lawyer in Washington and his former law partner on an issue that ought to have been put to bed many years earlier. And it was designed just to do nothing but put pressure on him. We were well aware of Nixon's abuses of power in other areas

and. No one has seemed to draw that you know connect the dots before him put them to include this effort to unpack the court which I have done. So the net result was because of this pressure for him. Resigns report he did he say is quite remarkable that it says that the bluff was so good and that none of forces colleagues who would theoretically be the finest legal minds we have in the country. So much of it raised a finger to to assist him more in order to counsel him to have to fight it. There is there is conflicting reports as to whether William O Douglass who was one of his friends and colleagues did or did not he was out of town most of the time and it's been written up two ways One is that he counseled the fight because that's what indeed what William Douglass himself would do later when they tried to remove him and others have just said that he really didn't get into it. But when the cot when foreigners presented a situation to the conference of his colleagues.

Several of whom had similar arrangements where they had accepted the fees for serving on foundations and indeed the man Nixon would put it on the court himself as Chief Justice Warren Burger had for years taken such these from the Mayo Foundation. It was not an unusual practice. It just happened that this fellow Wilson whose foundation for to set on got in trouble with the FCC and they tried to assume a worst case that Faurisson somehow tried to help Wilson through with his problems when in fact Wilson himself had told the Department of Justice after Mitchell had. Presented his bluff that he had had no quid pro quo from Fortas but again was worried in the court was worried that you know there was going to be a lot of embarrassment for the court rather than cross any embarrassment. He just cried and left.

We're talking this morning with John Dean about his latest book The Rehnquist choice the untold story of the Nixon appointment that redefined the Supreme Court. His previous books blind ambition and some reason lost honor. Thank you very much lost honor. He's also a columnist for MSNBC dot com. And another popular legal website Finlay dot com blog find law fall. I'm looking right at it OK I'm going to try to do that. Same thing looking at too many things here. He's joining us by telephone to talk about the Wranglers choice and those of you listening are welcome to join our conversation. The number around Champaign-Urbana 3 3 3 9 4 5 5 toll free 800 2 2 2 9 4 5 5. After the Fortas nomination Nixon had another empty seat to fill and we could talk a little bit about how he went about finding people to nominate. And there were several really badly botched attempts at this. There were. And it's I don't think it's well known that the man who was

running the radar machine to find future justices for the Supreme Court was William Rehnquist. Maybe that's one of the reasons. Well that's one of the reasons he was never on anybody's radar screen because he was running the radar machine. And he would look for candidates. Also Warren Burger who this is one of the revelations and there were many when I listen to the tapes and when I assembled the book I as you know I have been. Read the book I do it as dialogue rather than a book or transcripts and if it worked that way I eliminated all the repetitive stuff and made it read more like a novel than a than a dissertation on selecting Supreme Court justices because I found it a good story to do anyway. REHNQUIST I got a lot of the names in the list he kept of potential nominees from Burger Warren Burger and two of those names were met men by name a climate hangs Worth who was a fourth circuit judge and another one by the name

of Harold Carr as well both of these would be rejected by the ultimately by the Senate. The Vic the Haynesworth rejection was clearly a. It's a result of the Fortas treatment. The Senate and it was controlled by the Democrats. They were upset with the way 6:56 blocked to become chief justice and even more upset with the fact that he had been forced to resign when it was pretty fuzzy and hazy as to why he was resigning. People suspected the worst and they were correct in doing so. So that was really just a direct backlash that they rejected Clement Haynsworth who was totally qualified to be on the court. And Nixon This was Nixon's effort to put a Southerner on the court. Because I think the four circuit is in the south and Clement Haynsworth was a man of came from a wealthy family and he had a lot of potential conflicts and one of them had come

up all the admin of on the four circuit but had been cleared from it. But they used that of the Senate as a pretext to defeat him. And it was really very dubious whether it was legitimate but no more dubious than the basis that that. Forces have been removed from the court. The next one has the cars well nomination was how it got through the vetting process by Rehnquist. I don't know. It would come out after the hearings were over and Rehnquist had the job of reading you know a judge's opinions and making sure that he passed muster is as Supreme Court quality. But what came out with the car as well was the fact that he was one of the most if not the most reversed a lower federal judge and United States he'd served on the on a district court level for 12 years and had only been on the court of appeals for a very short while and he had been placed there because he'd been recommended by Warren

Burger the chief justice. And then he was he looked good on paper. He'd been a U.S. attorney he'd been a federal district one of the youngest federal district judges and he had just been elevated to the fourth to the fifth circuit so he looked good on paper but in fact it would prove he was a not so good. In fact the Senate quickly developed information the man might be a racist. Well I don't know that he is or is or was. There are certainly. Severe questions about his his thoughtfulness on issues like that because of his statements public statements some of them just shortly before he'd been announced to be nominated. Another thing that while Richard Nixon was always looking for first one first I don't think he was looking for was to place the first homosexual on the high court. And it appears that would have been Haynesworth too after this debacle was ended. Would the world would learn that he had been a homosexual for a number of

years and he got arrested in a mall in Tampa Tallahassee Florida soliciting advice officers. So there was no question about his proclivities. The what killed his nomination though was that one of his supporters when it came out during the debate that this might not be the best quality mind his supporter Memon him a Roman Rusko of. It had been in the Senate for years on the Judiciary Committee when outside the chamber after they'd started debating on the Haynesworth nomination and and said to one of the reporters who had a microphone errors to record for radio said well you know the people who are mediocre we can't have all Brandeis and frankfurters and people like that these great minds of the mediocre people and who in the world are entitled A little representation also.

And of course that was the seal of death because he was mediocre and he went down as a as a very mediocre selection. And that last president. With two two rejections and he quickly however came back with another name from Warren Burger an old friend of warm burgers by name of Blackman who would be very quickly confirmed by the Senate and indeed take a seat on the court and actually would also surprise Nixon because and his old friend he would become much more moderate if not liberal than had been expected. What were they hoping to do with these appointments What was the political now. Each of the candidates that they sought you know that strict cost construction was the criteria in the book I have something that I I was surprised to find in my files there when I. I also not only do I rely on on tapes the Nixon tapes about 100 Nixon tapes that I used to assemble the book. But I also went through a lot of

I went through thousands of documents and narrowed it down to about 3000 and then from those took material but one of the documents I found in my own files was a definition of what Nixon was looking for on the court he wanted and I cam and campaigning and 68 had called for what he called a strict constructionist. That's a term that has been used as recently as the last presidential election when George Bush said that what he was going to put on the court were strict constructionists. Well I since I say I found a definition of a strict constructionist in a memo that Bill Rehnquist had written. Climate hangs words to describe what I did the in fact he was a strict constructionist. But it was what struck me was Rehnquist's definition so we now have a definition by no less than the sitting chief justice of United States as to what a strict constructionist isn't. And it really boils down to a rather blunt assessment as follows

a strict instruction as a judge is a judge who favors criminal prosecutors over criminal defendants and favors civil rights defendants over civil rights plaintiffs. Since that is and that's a pretty accurate description of what a strict constructionist is so I I doubt that the incumbent president is going to call for a strict constructionist because obviously it is a very biased and not a very good view. But this is Bill Rehnquist his own own construction of construction assistance that is that is strict construction of what a strict constructionist. Yes. And that's what they were seeking to appoint the Supreme Court. It was really it is. OK. And Bill Rehnquist is a strict constructionist I'll assure you. Soon after this there were two more vague. In CS on the Supreme Court due to declining health of justices Hugo Black and John Harlan and so President Nixon was presented

with two more opportunities to place his own judges his own definition of what a justice should be on the Supreme Court. I wonder if you could talk a bit about the screening process. This was kind of a problem because they didn't they had no idea who to pick. Right this is where they're what we've really been talking about is pretty well handled in a in an introductory part of the book. The what we're really talking about now is the core of the book which is this 34 day drama in which Nixon has these two vacancies to fill. And as I said the first one it was Dick who. That's act one where he would fall to the wayside. But another interesting thing that happened very early and this had been rumored around the White House when the vacancies first you know occurred that Mrs. Nixon got involved and something she never did while I was there or any time I know in his career. And but she let the word out that she was going to lobby the president to make sure a woman was appointed she thought it was past time the woman on the court and so she was

putting pressure on the president to select a woman. Well I also knew and then got confirmed when I started listening to the tapes that the attorney general John Mitchell wife Martha Mitchell also thought a woman should be on the court. So here are these two men who are going to make this decision. And they're there with their wives putting heat on them talking about whether a woman or not should be on the court. And they're really very amusing if not offensive in some regard. But they are they're beyond offensive they're outrageous where the the the particular the president where he has decided that since his wife and his daughters are telling him that it is time he realizes politically that this is true that it's a great political plus for him to select a woman. Oh he tells his attorney general John Mitchell he says you know I I don't even think women should be educated. I don't think they should vote. And this is an amazing thing you can hear on these these tapes the have him saying the stuff

that's right all of the all of the conversations in the book except he knows some of those which I've reconstructed from memos in my file to keep in dialog or all. You know there are taped conversations and I have not changed them an iota. I've just added them down to make the story move. Right right. But anyway that's right and it was the one that I was when I listen to the tapes. I must say one of the things that struck me Jack was that the first thing that I found myself laughing a couple times it was so outrageous when they when they talk about for example Nixon on the subject of women I would tell Michel at one point you know can you imagine how awful it would be to appoint a woman to the court would be like putting a woman in a space ship with men and of course that's everyday you occurrence now but he just couldn't even conceive this. And of course as the story moves along you find that the chief justice Warren Burger threatens to resign if Nixon appoints a woman so a woman had real opposition but anyway to move the

story after a tough sell aside and act one. Mitchell and Nixon are scrambling for nominees and that they did at that point and they come up with really two candidates from a wide field and a lot of selection and some work by the White House on looking for additional women but anyway they are there. Focus quickly on two candidates and they are a bomb lawyer from Arkansas from Little Rock who until I'd listened those tapes I'd always assume that Hershel Friday was the nominee of John Mitchell because they were old friends and John Mitchell had been a bomb lawyer but that isn't that isn't the case. This is another Warren Burger suggestion and recommendation I just had no knowledge of that and no one else to my knowledge ever was aware of that. The other nominee that they settled down on was a woman by the name of Mildred Lillie who was a court of appeals justice in California the column and

at the middle level court out there justices. In fact Mildred Lillie is still alive and I just talked to her a couple weeks ago and she's a she is apparently done longest serving judge in California now and she's just as sharp and as quick and as able as I remember when I vetted or 30 years ago. Well that's great. Well we will continue on this vein. I do have a caller one clue in the conversation Also since we're at a point where this would kind of make sense I'd like to just play a cut of Richard Nixon and John Mitchell discussing Mildred Lillie as a candidate for the Supreme Court and we'll continue to talk about her like great great little Italian. During the rhetoric but it may be a good thing we are looking at him and he's a lawyer. Yes. He

wants to be doing mediocrity. And looking for a good 30 years that there are great distinction. You can accuse him of influencing the judges decisions and get a little bit with some votes in the bank but they seem to pay them a reasonably good standing in the community. So far it just looks very very supreme. California standing right there on our own got a good personality. You know you're right I know. Terrible.

Well I think you're missing very good. OK so far so good and now finally secondary for your next are people on earth next week. All right Richard Nixon and John Mitchell discussing Mildred Lillie think the thing I found remark about that besides the reference to frigid bitches. What is that they seem to be called streamer on and her husband was rather than who she was. Well what happened when the and what would happen also when her name was first surfaced. A lot of the attention would focus on her husband as the first woman and if he did you know I when I have Ed. I didn't think that he had any problems at all and I don't recall him and he would have. And the Department of Justice pretty well checked that out. By that time the.

But she was obviously very shy that was her second husband her first husband had died and she was really she was and is a remarkable woman and she obviously was somebody who had her own mind and had been dealing with men and lawyers all of her life and as that they as you noted from that conversation they were setting up to send it to the bar. The reason that Mildred Lillie is not sitting on the Supreme Court today is because of the bar committee was made up of 12. Men of which 11 said that she wasn't qualified to sit on the Supreme Court although she was the most qualified woman in the country to sit on the court. In essence they were saying no woman in the country is qualified to sit on the Supreme Court. It was a pure male chauvinist decision that prevented Mildred really getting on the court in fact a decade later when Sandra Day O'Connor was nominated by Ronald Reagan in 1981. I pulled out I pulled together both of their credentials and really was every bit as qualified if not in some

regard more qualified than Sandra Day O'Connor. And as I say but for the Ronald Reagan one had made a decision not to get pre-approval from the bar and to a decade it passed. So times have changed. We have a couple calls to talk with all include them or a conversation let me just mention once again our guest during this hour focus 580 is John Dean. We're talking about his latest book The rink with choice the untold story of the Nixon appointment that redefined Supreme Court. There's a lot more ground to cover we'll try to do that in the remaining. But let's include some callers will go first to listener in Urbana on line number one. Good morning you're in focus 580. Thank you. I'd like you to comment on earlier descriptions of Powell and Rehnquist in the book The brother and by Armstrong and Woodward for Justice Powell. Somebody told him he got confirmed because they thought he would die young even though he was a moderate. And his description of

their description of Rehnquist was that he was very conservative but so smooth about it that he didn't offend people. What's your feedback on that. Well I I actually cite the brother at one point in my own book I'm very familiar with the book I'm very familiar with Bob Woodward and Scott Armstrong and of their friends. As far as Powell it one of the things you'll find in my book that is really quite remarkable is how hard Nixon had to work to convince Powell to take the seat. And what happened is that Powell believed that he was shouldn't take the seat because he was losing his eyesight he was going blind he thought it would be less than forthcoming. You know if you didn't know if you could sit there more than two years or how many years of course he was at there over a decade. But there was to the contrary he was. He was considered the real prize when they convinced him to take the seat. And as a great conversation where Nixon and Powell which I did almost no editing whatsoever. Just because I thought it was important to

not do any even boil it down excepting when he gets very repetitive at the end where he convinces him or tries to convince him to take the seat so that that is not quite a correct bit of rumor out of the court that Woodward and Armstrong picked up as far as Rehnquist. No question. He was smooth and we're not in this in this conversation or on this broadcast going to be able to get to the all of the reasons on how at the very end of the story and only hours before Nixon. Appoints Rehnquist is just right to question yourself learn that in order to when I have time or space in order I want to spoil the story as to how my fine hand was involved in getting Rehnquist on the court and something for which I have you know many second thoughts in fact I opened the book by saying that I have some regrets about it and for that reason at least I thought I could do was tell the full story. I'm glad you did. You're glad I'm sorry. I'm glad that you did. Thank you.

Thanks very much for the call. I want to try to get to at least some of that as you say without necessarily spoiling the story but we've got some of the callers and I will defer to them. Let's go next to a listener in Sullivan NY number four. Good morning on focus 580. That program they were airing. How are you. Well for one my building on the bar story and all. So Martha had told her a little bit they were leaving her. Thank you thank you. Well as far as the Watergate hearings go I did you know I was really testifying to what I knew firsthand when you're telling the truth it's. You don't have to keep dragging the bushes around and keeping your story straight I just told with the way I remembered it now I was I was denied access to my files in those days. And boy I just realized how much more I could have said that I had access to my files. Now that those files are available and I was back in them

during for example this this effort to write this book. Martha Mitchell I actually tell a couple funny stories about Martha in the book the Rehnquist choice because she was a she was very much on John Mitchell's case and as well as the president she the president once told Martha that if he found a good woman for the court let him know and she thought there were a lot of good women. And whatever happened to her is you know she had a chin a sad problem she had a drinking problem. And when she was three sheets at night she'd often call the press and talk to them and sometimes she was correct sometimes she was not correct but she was a lovely lady an outspoken lady. I enjoyed her and I thought she was fun. I do appreciate the fact though that alcohol was not a very good tour or a very good program.

You know thanks a lot for the call. Just following up on the earlier question about Bill Rehnquist and his conservatism you said at the time that Bill Rehnquist makes Barry Goldwater look like a liberal. In fact it was Rehnquist who advised Goldwater to vote against the 1964 Civil Rights Act. Correct. I had learned that from the senator myself I I've known the senator for years even at that time. The senator's son and I had been roommates and school and prep school. And so I had known him since I've been about 13 years of age and I was still in my early 30s then so I'd still have known the senator for a number of years and while in law school I'd gone up to watch the Senate vote on a lot of votes I went to Georgetown Law School actually another senator son and myself so we got pretty good seats in the gallery. And one of the suits one of the votes I'd watch was 64 vote when Goldwater was running for president and the vote on the 1964 Civil Rights Act was a very important vote and years later when I came up in he and I were talking and he

regretted that vote that he had voted against the bill. And I asked him. How did you vote again had you had a vote against it and he said that he had been advised that it was unconstitutional by a lawyer he respected and that was the Rehnquist. So I there's no question that now that we have had a chance to study Rehnquist and see how he reacts that he is he is far to the right of of most people who Nixon was considering who were Jack to because of the civil rights record. We have a couple callers waiting in just about maybe seven minutes left I want to try to include as many people as I cancel a school next to a listener in Bloomington Indiana on one or two good morning on focus 580. How about strict construction and loose construction of the Constitution. Mr. Dean quotation of that's Rehnquist. Implied that the that the definition of a strict constructionist is one who judges according to his personal subjective prejudices. Mr. Dean let me let me run another definition

by you and for your comment. I think a strict constructionist this is not. This is something that has been known in law for quite a while. A strict constructionist is much more objective really than a loose constructionist. You know I don't disagree with that in fact there's more to this discussion on strict constructionism and than the definition I've given. Yeah I think that's been himself a very extensive definition where he's East and he relied on his his best example of a strict constructionist was Felix Frankfurter. But what's interesting when you rely on Felix Frankfurter He's also written that a judge is not capable of making any determination without putting his own feelings into it so that somehow you can't purely just read the language of the law and know what it means. Hopefull last call with forgive me we're really running short on time I have some of the calls in which one include Will next to a listener in Clinton Iowa on line number one. Good morning folks 580.

Thank you. In your discussion about Rehnquist on the right I've got a question about the confirmation hearing I believe for Rehnquist. It's a written testimony from a California attorney. A member of a prestigious California law firm called Rehnquist in the Arizona election. It's not clear if it would be for you had the listener has a good memory and I tell that story in the book. It's a very dramatic story and it happens during the hearings where he has he is being challenged because he's challenged voters in fact one of the one of the if you will of what we learned from the way the request was selected is dealt with in a section I call the afterword of the book and it's sort of the consequences of Nixon selecting him in the last minute and he was never vetted.

He was not no I never checked his background never checked his civil rights record and the fact he had challenge voters came up in his hearing both in 71 and 86 in 86. They are making the point that he indeed lied in 1071 when he testified about this and the witness you're talking about is a member name of James Brosnahan who is a former assistant U.S. attorney in Phoenix who had been called out. Say an election in the mid 60s in Phoenix and found Rehnquist challenging voters and he really put the lie to Rehnquist on this question. So you have a very good memory of those events. Thank you very much. Thanks very much for the call. We just have about three minutes left and I want to make sure that we talk there's a lot more we're not going to be able to get to Unfortunately in the book. Yes that's right. Again the Rehnquist choice is the book. But I wanted to ask you to talk about the announcement of these two candidates Lewis Powell and William Rehnquist on on the day that they were announced it was successfully

kept a secret from from the press and it was a very difficult thing apparently to to keep secrets. The Nixon White House or perhaps in any White House but saw any events. You know the candidate Rehnquist didn't know until the day that he was announced that he would be a candidate. That is correct and he was never as I say he was not vetted. And that's the problem. And the moral of this story and one of the reasons I think it's important and is a timeless story because it shows what happens if you don't go through the full process it's a something I'm sure that could have been prevented there nothing in the vetting process would have disqualified Rehnquist from sitting on the court. But it would have prepared him and he I'm sure would have answered many questions differently where he gave some rather rash if not indeed concocted answers that were not true. And. Left to himself with a record that is going to haunt him into history. I wasn't the only one to find one of the other things that surprised me I wasn't the only one to

reach this conclusion I had instinctively known it at the time of the 71 hearings I had some of the things he was saying didn't pass the smell test. And when I studied the 86 hearings I defined that the Senate had really focused on his 71 hearings to show that he had lied. And yet the Republicans controlled the Senate so they just pushed the vote on through and he was confirmed. But he's now has a number of academics have looked back on this record realize that it's pretty clear that he he had lied about several things during his confirmation hearing and that's a rather sad commentary on the highest judicial officer of the country. Well I'm sorry to say that we're here at the end of our time there's much more in the book so if you'd like to learn more you should look for it. It is entitled The rink with choice. The Untold Story of the Nixon appointment that redefined the Supreme Court published recently by the Free Press and also there is a 5 CD collection audio version of the table so

in total the Wrinklies choice in there both by our guest John Dean and Mr. Dean thank you very much for talking with us and very interesting. Pleasure. I like your neighborhood down there. All right Will thanks. Be well. Thank you you too.