The Long Reach of the Sixties by Kalman Laura;

Author:Kalman, Laura;
Language: eng
Format: epub
Publisher: Oxford University Press, Incorporated
Published: 2017-06-15T00:00:00+00:00

“God, What a Guy to Have on That Court”

The White House and Justice Department were now almost back at where they began, as high-level administration officials privately acknowledged. The president’s press secretary nevertheless insisted that “Congressman Poff was under consideration with a number of other people.” Technically, that was correct, since Nixon, Mitchell, and White House staffers had discussed other names besides Poff’s.37

They had agreed that if Thurgood Marshall, who Nixon thought was “God damn dumb” and whose health they liked to check, retired, they would have to appoint an African American to replace him. “That’s one you’ve got to do,” the president said. While he worried it would mean naming a progressive, he had his eye on Senator Edward Brooke, who was “basically a liberal, [as] he had to be,” but “one of the few blacks [who] really talks in an intelligent way”; Equal Employment Opportunity Commission Chair William Brown, whom Ehrlichman found “very loyal”; or William Coleman. (In 1973, Nixon would expand the list to include Chicago lawyer Jewel Lafontant, whom he had named deputy solicitor general. “Why not kill two birds with one stone, get a black woman,” he remarked. “When they say she isn’t a towering figure, well, who the hell is a towering figure on that Court?”) After speculating about whether nominating an African American would encourage Marshall to retire, the president and the attorney general had decided to wait.38

They had also ruled out a Jew. “When are you going to fill that Jewish seat on the Supreme Court?” Mitchell joked. “Well, how about after I die?” Nixon laughed. Nevertheless, they had briefly considered Yale Law School Professor Alexander Bickel, a Frankfurter clerk and iconoclastic Democrat who had argued the Pentagon Papers case for the New York Times, if his position on busing proved satisfactory. “Everybody would say well, we finally appointed a scholar,” Nixon noted. Another possibility was Philadelphia District Attorney Arlen Spector, who was “strong on law enforcement.” They had not mentioned Third Circuit Judge Arlin Adams, an early Nixon supporter with whom Mitchell was reportedly angry.39

But they had not just eliminated candidates. They had talked about the political advantage of naming a Catholic. “If he’s a conservative, a Catholic conservative is better than a Protestant conservative,” Nixon instructed Mitchell. That made Lawrence Walsh himself a possibility. Another ABA stalwart, former president Lewis Powell, was too old, they agreed. They had dissected the political advantage of naming a woman, discussed Judges Mildred Lillie and Sylvia Bacon, and dismissed others. They had covered Warren Burger’s belief that Nixon had given him the right to name Harlan’s successor. “I didn’t give the Harlan seat to anybody,” the president exploded, though the chief justice’s suggestion of Arkansas lawyer Herschel Friday intrigued him. They had mentioned as a possibility Governor Ronald Reagan’s friend, William French Smith, “a hell of a big corporation lawyer,” Nixon said, whose wife the president liked. They had also spoken of Caspar Weinberger. As Nixon observed, Weinberger possessed two advantages: He was an Episcopalian with a Jewish name and he had an undeserved reputation for liberalism.

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