John W. Dean, White House Counsel to Richard M. Nixon During His Presidency, And Author of "The Rehnquist Choice"

A BUZZFLASH INTERVIEW
Second of Two Parts | Part 1

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BUZZFLASH: Now, getting back to the actual nomination, my overall impression from reading the "The Rehnquist Choice" was I was astonished that, at least back in 1971, the nomination of a Supreme Court justice seemed random and even bumbling at times, much more so than anyone could imagine. There was a lot of lack of coordination, and Mitchell had certain nominees, and it was sort of like Nixon's a coach and they're running out of players. And the coach keeps saying, "give me some more players," and people run around and come up with names. And it was just incredible to read how uncoordinated and sort of lacking in orchestration the whole process was.

DEAN: Well, if you've ever been in the government, you know that the end product and the making of the product -- it's not unlike the sausage factory. It's not always very pretty what goes on inside. And sometimes the finished product is better than others. This is not atypical of the way government works. And it is not as systematic and systems-oriented, even, I suspect, in the Bush White House, which prides itself on being sort of corporate types. We had the same type, if you will, in the sense that Bob Haldeman was as good an organization man as you'll ever find, as close to a micro-manager as you could ever find. But yet here's a situation where the President just doesn't want any part of it, and that happens. Presidents can only be strapped into the system so long, and then they'll do their own thing.

BUZZFLASH: In your book, Rehnquist really doesn't come into the story as real potential Supreme Court nominee until the last pages, that's when Rehnquist is selected.

DEAN: Literally hours before the President announces it, Rehnquist learns that the President's going to select him. I'm not quite sure what would have happened if he'd have said, "No, I can't do that." Or, "I'm in bad health, and I could never sit on the bench for all those years" -- or who knows what could have happened. Probably what would have happened is Nixon would have gone with Senator (Howard) Baker. It's the way it came down. As you know, Nixon latched onto (Lewis) Powell very early and wanted Powell.

BUZZFLASH: And then Powell had this vision problem that he was concerned with.

DEAN: Which fortunately didn't become too serious for him when he was on the Court, but yet was a problem. There was no question.

BUZZFLASH: And he was very forthcoming that this might interfere with his duties, but at that point, I guess you could say the White House was desperate in a way.

DEAN: Well, the President really leaned on Powell to go on the Court. You know, there's one conversation where Nixon calls him. And I think it's really Nixon at his best in that conversation. And what you miss in a transcript are sort of the inflections and the voice, and the tone and the manner, which you can't as easily convey. But Nixon was very effective in that conversation at persuading Powell. Although he doesn't close the deal, he gets it pretty close.

BUZZFLASH: So we've seen numerous potential nominees fall through. There's a double opening now. And all the time, it seems Nixon and Mitchell are trying to figure out how they can get both a conservative and then a somewhat moderate through, but mainly so they can get a real conservative nominee through, to use the two positions to play off of each other.

They're having trouble with the American Bar Association approving candidates, particularly the female candidates. The book starts with a congressman, (Richard) Poff, who falls through. Because of personal reasons, he pulls out. But Nixon marshals tremendous arguments in these conversations on why a sitting Congressman without much legal practice experience should be nominated, including, you know, that he has been on the Judiciary Committee -- what more would you want?

DEAN: I happen to agree with that. I think we need somebody from the Congress to go on the Court. And since Justice Hugo Black left the Court in 1971, we've not had a member of the House or Senate. Yet the entire initial history of the Court up to Black, there had always been somebody from the Congress there. And particularly now, at a time when we have a Court that's starting to repeal acts of Congress -- these people now on the Court don't have an appreciation of how the Congress really works, and yet they're sitting there making their judgments. And they might be making better judgments if one of their colleagues could give them a little insight into the process before they start chucking out all federal laws that they don't like.

BUZZFLASH: So we've sort of seen people considered -- is it Harland from Arkansas, was it? Not Harland from Arkansas -- who was the -

DEAN: (Herschel) Friday.

BUZZFLASH: Friday from Arkansas. And there are all these conversations with Lawrence Walsh, who eventually became the Iran Contra special prosecutor, who was heading the ABA vetting committee at that time. And Nixon, of course, like the current administration, wants nothing but support for the ABA screening process. So Nixon finally gets Powell, who'll have no problem with the ABA, since he was once president of the ABA. But he's still got one seat open. Senator Howard Baker is playing hard to get, and for days, Baker doesn't get back to Mitchell or Nixon. He's trying to figure out financially whether he can do this, but he's not being responsive in the way that you expect someone who's being offered a position on the Supreme Court. And that's kind of when the Rehnquist idea finally takes hold.

DEAN: What happens is Dick Moore, with whom I'd been talking and pitching Rehnquist as a potential candidate -- Moore was an older member of the staff, somebody who Nixon liked to just chew the fat with. Nixon didn't want to talk to his normal sounding board, Haldeman, because Haldeman was not a lawyer. Nixon therefore thinks Haldeman didn't really have an appreciation for the appointment. He's also avoiding Ehrlichman because he thinks Ehrlichman's got an agenda.

So when Nixon is chatting with Moore, Moore tossed him my suggestion, telling Nixon in effect, your counsel, John Dean, is suggesting Rehnquist. And Nixon doesn't -- he brushes it aside at first. But then he comes back, when he learns -- or Moore tells him he thinks Rehnquist was number two in his class, by they're wrong because Rehnquist was number one in his class at Stanford. But Rehnquist's class standing is enough to seriously attract Nixon to Rehnquist, because he's not sure whether Senator Baker has that high a standing in his class. So Nixon wants Mitchell to find out about Baker's class rank.

I think the important thing to understand about all this is what Nixon is really reacting to is the media criticism of the names he'd floated earlier. And it shows the tremendous impact the media can have on presidents. While they can pretend they're not affected, and they took the public stance of ignoring the news media -- well, we don't really pay any attention to what you people are saying -- in fact, they do. And it's the media that was driving this decision to quality, lest he might have put West Virginia Senator Bob Byrd on the Court, who was totally unqualified to sit on the Court at that point.

BUZZFLASH: At least the stereotype of Nixon's sort of Machiavellian maneuver, no question, the man was brilliant in his own way and very astute about politics. In your book, you note that he dangles the nomination of Robert Byrd, who, at that time, was perceived as a former Klan member and far too right wing in racial views for the mainstream Democratic Party. And this is to kind of toy with the Democrats. He had no intention of nominating him, it would seem. But it was just so that when he didn't nominate him, whomever he nominated would then seem less anti-civil rights than Bob Byrd, which seems sort of ironic.

DEAN: To the Democrats.

BUZZFLASH: Right.

DEAN: The Democrats couldn't afford not to support Byrd because Byrd, even in those days, held such power in the Senate that his colleagues wouldn't have dared incur his wrath by voting against him. In the book, I describe this as a kind of a stink bomb that Nixon fantasized throwing into the Senate. But at one point he actually became very attracted to the idea, and so he kept throwing this idea out to let the world know he just might do it. And Mitchell -- in fact, it's very funny listening to the conversations. It's as if he -- Nixon -- is playing with Mitchell, but he gets pretty serious about it at one point.

BUZZFLASH: And he insists to Mitchell that he put the name out there. And Mitchell was hesitant.

DEAN: Right.

BUZZFLASH: Like we can't do this. And Nixon comes back a couple times and said, "Remember, I want Byrd's name out there."

DEAN: Right, right. And I was getting feedback at this time from Ehrlichman, who said, "He just may put Byrd up there." So no one was quite sure what Nixon was doing. He was holding it all very close to his vest; his attorney general and good friend Mitchell didn't know quite what he was up to.

BUZZFLASH: Now let me ask you: There's a very sort of bombshell moment in the book when Nixon is seriously considering a female judge from California who had a very high reversal rate, apparently, when her cases went to the California Supreme Court. And Nixon sort of sloughs that aside. But the ABA didn't, which sort of made her nomination eventually troubled. But Nixon is always talking to Mitchell about Burger. How are they going to handle Burger, because Chief Justice Burger's going to be vehemently opposed to a woman being on the Court.

And there's this extraordinary moment when Mitchell informs Nixon that Burger had visited Mitchell's office in the Justice Department. And Mitchell was kind of a little bit upset because it didn't seem appropriate that the Supreme Court justice should be over at the Department of Justice -- the Chief Justice of the Supreme Court -- and that Burger tenders his resignation. Can you explain the background on that?

DEAN: At one point, apparently Burger was so opposed to having a woman join the Court that he threatened to resign. He had the letter in hand. He'd written it out. And Mitchell, I think, handled that pretty well, under the circumstances. Mitchell thought it was overreaction, and that Burger had no business trying to dictate the president's selection. So Mitchell explained it to Nixon, who said he'd accept the resignation before he'd let Burger tell him what he could or could not do, Mitchell said, "Well, you know, the man's been ill. And maybe it's his medication." Mitchell gave Burger some excuses. Probably in his own mind as well, Mitchell thought Burger was not acting like himself. But it's clear that Burger just couldn't envision a woman being in that men's club up there at that point.

Let me go back to Mildred Lillie, who is still on the bench, incidentally, in California. She's now the longest sitting justice in California.

BUZZFLASH: She was one of the people on Nixon's dance card who he basically had decided he was going to nominate.

DEAN: He was. And what happened is that the ABA committee opposed her. Nixon felt this got him off the hook politically. In other words, he had tried to appoint a woman, but the ABA had said no and had opposed her. It's interesting: There was an 11-to-1 vote against her on going on the Supreme Court. And you never know why the ABA committee votes the way it does -- it has a remarkable record for keeping sealed all this information about judicial selection after all these years of doing this. It never leaked out. I don't know if they destroy it after a point in time or what they do. But it still never surfaced.

But Mildred Lillie -- she was interesting. I don't know that Nixon understood that she was actually a Democrat who'd been appointed to the bench in California by Pat Brown, a very liberal Democratic governor. And her only points that she was really conservative on were the law enforcement points. And that was because she'd been a prosecutor in the criminal justice system and was pretty hard-nosed on that. She was also right on abortion for Nixon because she was a Catholic. But most of her decisions would have put her in the liberal block of the Court. It would have been very interesting to have had her on the bench, and, theoretically, she'd still be sitting there today, because she's still sitting on the Superior Court here in California. I'm convinced she was highly qualified for the Court, certainly as qualified as Sandra Day O'Connor who Reagan appointed. But Justice Lillie was ahead of her time, and the ABA rejected her because she was a woman.

BUZZFLASH: It's an amusing side note again on how political Nixon was. Judge Lillie married a man named Falcone. Nixon wanted her to be an Italian for political reasons so he didn't want her to use the name Lillie, rather her married name, Falcone. And Nixon -- when the other people, staff members, would talk about her nomination -- he insisted that they call her Mrs. Falcone, because he wanted to get the Italian Catholic vote.

DEAN: Right. Actually, it was Pat Buchanan who had convinced Nixon he needed to select an Italian Catholic for the Court, and there she was, just a matter of packaging. In fact, she wasn't Italian at all.

BUZZFLASH: And so he didn't want to call her Judge Lillie, and he'd say, no, she's Judge Falcone.

DEAN: Right.

BUZZFLASH: And I guess John Volpe at the time was insisting also on an Italian. So he thought, well, he'd kill two birds with one stone. We don't care what she calls herself. We're going to call her Judge Falcone.

Let me just ask you a couple more questions. First of all, in your afterward, you deal with a couple issues that have come up before. This is not the first time but you've reexamined them, probably with a larger magnifying glass - whether or not, to be blunt, Judge Rehnquist committed perjury -- in his 1971 hearing for his confirmation, and in 1986, when he was up for Chief Justice -- on two issues.

One, which I think is fairly widely known now, is whether or not he actively engaged in challenging minority voters in Arizona while they were waiting in line at polling stations -- it was a legal practice, but not something you would expect of a future Supreme Court justice. This happened in Arizona in the early '60s. And the second issue was a rather complicated issue, but certainly a fascinating one, regarding a memo he wrote as a law clerk to a Justice Jackson: It was written in first person and basically supported segregated schools, in essence, without getting into the legalese of the matter.

On the one hand, Rehnquist said he never engaged in this practice of challenging anyone's voting rights in Arizona. And then in the second case, he said that really he was writing the memo to reflect Justice Jackson's request to write a memo that would argue that case so Justice Jackson could decide. And you conclude that section by saying, after examining these two issues, "And it is now quite clear to me what happened" -- I'm quoting you -- "Rehnquist lied." Do you want to explain a little bit of that?

DEAN: The reason I presented this information is because of the way Rehnquist was selected -- the rush with which it was ultimately done -- and the result of it was that there was no vetting process. There was no real background investigation. There were no background sessions with him. No one sat down and said, "All right, Bill, what are the problems?" as we would do with any other high-level appointee. It just didn't happen. And it created a serious problem. As the book lays out, it is not just my conclusion that he lied, rather the conclusion of anyone and everyone who has looked at the evidence.

And Haldeman, as I report in the book, called me at the last minute, sort of panicked in the end, when he realized that Rehnquist was going to be selected, and he wasn't even supposed to know it. But when Haldeman learned of Nixon's decision he was acutely aware of the fact this man hadn't been vetted, and we didn't know what kind of problems we might encounter. There was no way I could vet Rehnquist under the circumstances. But had I done so, I'm convinced I would have uncovered the matters he later lied about. And had I done so, he would not have needed to lie. Neither would have disqualified him from being on the Court, and they only became problems because of the way Rehnquist handled them during his two confirmation hearings.

Rehnquist was one of the early vetters, if you will. But he was not very good at it, and the White House took that responsibility away from the Justice Department, and Rehnquist after they let Carswell and Haynsworth through their system. Those rejected nominees had been poorly vetted, and had they been properly vetted, neither would have been nominated.

In fact, when Rehnquist and Mitchell came up with Herschel Friday, they had failed to vet him. They'd come up with a nominee who really would have been crucified and made Carswell look good -- not because he wasn't a good lawyer and a good man, it's just the fact that Herschel Friday hadn't thought about the types of issues that confront a justice. He didn't know what he thought about them. And he really wasn't ready for the Supreme Court.

Because Rehnquist was not vetted, and prepared for his confirmation hearing, he handled the problems by dissembling. The problems all arose during his 1971 hearings, and the 1986 hearings merely went back and focused on the problem areas. For Rehnquist --

BUZZFLASH: In the light --

DEAN: Quite unfortunately.

BUZZFLASH: And the last-minute rush was because Nixon had decided he was going to announce this on television, hell or high water, on a certain date.

DEAN: That's correct. Nixon had other policy issues he was working on that he didn't want disrupted, or distracted from, by his selections to fill the two empty seats. Also he was pressed because two empty seats on the Court had forced it to postpone its work. The Court needs all nine justices to operate properly, so Nixon had that pressure as well. So he wanted to get the Court news out and done and with. Its another example of the tremendous impact the media has on the presidency. Presidents do design their announcements, their schedules and their plans around the media impact.

BUZZFLASH: Now two more questions and I'll let you go. One is just the history of this book. I think it's unfortunate, but my understanding is that this was released just around September 11, 2001, with little notice because of our preoccupation with the horror of the attack on the World Trade Center.

DEAN: That's exactly what happened. In fact, the publisher called me, I think on the 13th. Simon & Schuster/Free Press is the publisher. And the editor of the book was really a bit distressed because he had just gotten back in his office. He actually lives not far from the World Trade towers. He said their first thought was to stop the book and wait several months to release it, because there was no need to release it right then. Because they thought this was an important book, they did what is called a lay down. In other words, the book would be shipped all over the country, remain embargoed, and then it would be available in bookstores everywhere on the day of publication, which was to be the first Monday in October -- the day the Supreme Court starts its term.

But they learned the printer had already started the shipping. It's a massive shipping process, and there was just no way to stop it at that point. So we had to go forward. But the book was lost in the aftermath of 9/11. All the TV shows like the Today Show, were canceled, and I didn't do them until many months later -- so the book tour never really happened, and no one knew the book was out, unless they happened to visit a book store. So the news value of the book did get buried in 9/11. But the timing for your interview is perfect because the paperback is just now coming into the stores. So it's going to get another life.

BUZZFLASH: You say in your note to the reader at the beginning, "I have some regrets about my role in the story. I've decided that the least I can do is tell it." Do you want to reflect at all now how you look back after being the person that put Rehnquist's name in play with his current role in the Supreme Court? What are your feelings?

DEAN: I could have never envisioned that Bill Rehnquist would be as anti-woman, as anti-black, as anti-minority as he is. Frankly, I find him cold and heartless as a jurist. His judicial activism is shocking. And his interpretations of the law really leave out the human element, and I think it's both sad and distressing. These are the reasons for my regrets. Your interview with Martin Garbus, whose book I've just started, certainly documents why I have regrets about putting Rehnquist in play.

BUZZFLASH: You write also for findlaw.com, and you have written several very incisive, thoughtful and informative articles about the threat to our civil liberties. So returning to where we began: What do you know, given the history of Chief Justice Rehnquist -- and there was a recent article in the New York Times saying that he has a history of siding with the executive branch in terms of restricting civil liberties and so forth -- how does a conservative, in your own mind, balance the idea of individual freedom and states' rights with being restrictive on civil liberties? It's somewhat of a paradox to us.

DEAN: They don't seem to be able to balance them. I'm struck by how the conservatives -- they always fall on the side of the government, as opposed to the personal rights and liberties of the individual. Maybe its genetic, who knows? Anyway, I think it's quite clear what's going to happen if any of these issues get to the Supreme Court as a result of 9/11, and the other related martial or military type issues. And that will be that Rehnquist will either try to get the Court to duck it and avoid it and not take the matter, or they'll come down on the side of the government. I think you can bet on that response from the Chief and his conservative support team.

BUZZFLASH: Thanks, John, so much for your time.

DEAN: It's a pleasure. I'm glad you enjoyed the book. And my wife, Mo, and I are enjoying BuzzFlash.

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Get your copy of "The Rehnquist Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme Court" from BuzzFlash and help us bring you the best in independent news, interviews and commentary.

Former White House counsel John W. Dean is a frequent guest on national television shows, discussing matters related to the Nixon presidency as well as legal, political, and government issues in general. He is a columnist for MSNBC.com and Findlaw's "Writ," a popular legal Web site (www.findlaw.com), and he regularly reviews books for such publications as The New York Times Book Review, Chicago Tribune, and Salon.com. He is currently producing a television docudrama (which he also co-wrote) for TurnerTelevision, entitled The Pentagon Papers, starring Alec Baldwin and directed by John Frankenheimer.