The Justices Behind Roe V. Wade by Bob Woodward & Scott Armstrong

Author:Bob Woodward & Scott Armstrong [Woodward, Bob & Armstrong, Scott]
Language: eng
Format: epub
Published: 2021-10-05T00:00:00+00:00

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Nixon thought Powell would be confirmed easily. He was a native Virginian and he had impressive credentials: Phi Beta Kappa from Washington and Lee College in 1929; first in his class at Washington and Lee Law School after completing the three-year course in only two years; a year of graduate work at Harvard Law School; private practice with a prestigious law firm; directorships in 11 major corporations; president of the ABA in 1964–65; president of the American College of Trial Lawyers, 1968–70; and member of Lyndon Johnson’s National Crime Commission.

Powell was a political moderate. As vice president of the National Legal Aid & Defender Association, he had played an important role in securing organized bar support for legal services for the poor. As chairman of the Richmond School Board from 1952 to 1961, he kept the Richmond schools open in spite of segregationist pressure to close them in the wake of the Brown decisions.

Rehnquist too had excellent credentials: an undergraduate and master’s degree from Stanford; a master’s in history from Harvard; and editor of the Law Review at Stanford Law School.

But Rehnquist might have more trouble than Powell in getting through the Senate. Richard Kleindienst, the deputy attorney general, had brought him to Washington in 1968 to serve as assistant attorney general to advise the department on legal strategy. He had performed brilliantly for the administration—justifying its anticrime measures, its wiretapping of domestic radicals, and the mass arrests during the previous spring’s demonstrations. Rehnquist might have done his job too well. He might run into fire from congressional liberals. Black people also seemed certain to oppose his nomination. Rehnquist had testified against a Phoenix civil rights act as recently as 1964, and in favor of limited school desegregation in 1967.

But Nixon had a plan: the two nominations would be sent to the Senate as a package. Powell’s supporters worked hard to untie the knot, to try to see that Powell and Rehnquist were not even so much as photographed together in visits to Capitol Hill. Shortly after his nomination, Powell and a group of supporters called on the Senate Judiciary Committee chairman, the conservative James Eastland.

Eastland sat behind his desk, silently puffing his cigar. “You’re going to be confirmed,” he told Powell.

Powell thanked him.

“Do you know why you’re going to be confirmed?” Eastland asked.

No, he replied.

“Because,” Eastland drawled, “they think you’re going to die.”

Eastland was offended by the efforts of Powell’s friends to separate his nomination from Rehnquist’s. Rehnquist had captured Eastland’s affections during his appearances on the Hill. The senator had heard enough from Powell’s supporters about how Rehnquist was a lowbrow, not up to the standards of the Supreme Court. To Eastland, that just meant that Rehnquist represented ordinary folk, Middle America. The confirmations, he declared, would be “double or nothing.”

Eastland got word that the ABA screening committee was not going to give Rehnquist a favorable recommendation. The committee’s authority was only advisory, but an adverse vote might damage Rehnquist’s chances by making him seem unqualified. Eastland found that prospect incredible.

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