When Dewey turned him down, Nixon then nominated Warren Burger to become chief justice. Burger had a white mane of hair right out of central casting, but he was a pompous, dull, and mediocre court of appeals judge, who did little to turn around the liberal lurch of the Court. That being said, he was relatively effective in the political game of Washington, exerting real influence on presidential decisions. And, had history played out differently, his tenure on the Court might have been quite short. Nixon’s memoirs reveal that he asked Burger to be prepared to run for president in 1972 if the Cambodia invasion went badly. Then, when Spiro Agnew resigned in disgrace in 1973, Burger was on Nixon’s short list for VP, along with John Connolly, Ronald Reagan, and Nelson Rockefeller. Of course, the appointment went instead to Gerald Ford, who then succeeded Nixon as president. Had the choice gone otherwise, we could have ended up with President Warren Burger.
Nixon also nominated Lewis Powell, an aristocratic and genteel Virginian who had been the president of the American Bar Association. Powell turned Nixon down when he was first offered the Court in 1969 but accepted it when offered again in 1971. A corporate lawyer and member of the board of directors of tobacco giant Phillip Morris, he was a lifelong Democrat who loved to find “middle-ground” policy compromises regardless of what the law might say. Powell joined the majority in Roe v. Wade—as did Warren Burger—and the most notable opinion he authored was his controlling concurrence in Regents v. Bakke (still followed today) that upheld race-based affirmative action by public universities.
By far his best appointment, Nixon also nominated William Rehnquist (or “Renchberg,” as Nixon called him repeatedly in the Watergate tapes, misremembering the name of the very conservative lawyer then leading the Office of Legal Counsel in the Department of Justice). For years as an associate justice, Rehnquist earned the nickname “the Lone Ranger” because he dissented alone, over and over again, from decisions moving the Court further and further left.
The year I clerked for him happened to be his twenty-fifth anniversary as a justice and his tenth as chief; at our annual dinner, all of the clerks (seventy-five in all) chipped in to get him three gifts, each of which was thereafter displayed in his office: a Lone Ranger adjustable doll, a full-size Indian headdress, and a ship captain’s wheel. The former reflected his tenacity in dissenting alone, year after year, and sticking to principle. The second memorialized his ascension to Chief. And the third symbolized how he had carefully steered the Court, building majorities and transforming many of those lone dissents—in criminal law, religious liberty, and federalism especially—into the law of the land.
Nixon also had two failed nominations: Clement Haynsworth and Harrold Carswell. Haynsworth, for a variety of reasons, was defeated by a bipartisan vote of 55–45, becoming the first Supreme Court nominee rejected by the Senate since 1930. Carswell was an appellate judge from Florida who had been a vocal defender of segregation. In 1948, he had given a shameful speech while running for office:
I believe the segregation of the races is proper and the only practical and correct way of life in our states. I have always so believed, and I shall always so act.… I yield to no man as a fellow candidate, or as a fellow citizen, in the firm, vigorous belief in the principles of white supremacy, and I shall always be so governed.
In addition to his atrocious record on civil rights, Carswell also happened to be a lousy judge. Responding to the charge that Carswell was “mediocre,” Senator Roman Hruska gave the following defense, which famously backfired: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”
The Senate rightly rejected Carswell’s nomination 51–45. (Years later, in 1976, Carswell was convicted of battery for sexual advances he made to an undercover police officer in a Tallahassee men’s room.)
After Haynsworth and Carswell were defeated, Nixon nominated Harry Blackmun, who would prove to be the worst justice he appointed. Blackmun, of course, became the author of Roe v. Wade and, over time, a staunch liberal. Blackmun and Burger had been best friends for decades, ever since grade-school, and Burger had lobbied Nixon to appoint his friend. In fact, Burger had been the best man at Blackmun’s wedding. They were dubbed the “Minnesota Twins.”
Blackmun had an undistinguished judicial record, before which he was the outside counsel for the Mayo Clinic. Quickly, he found himself overwhelmed by the responsibility of the Court. At first, he simply followed Burger wherever the Chief would lead. Over time, he grew bitter and resentful, not wanting to be overshadowed by the chief justice. Blackmun desperately sought praise, recognition, and adulation. And the firestorm he ignited (unwittingly, it appears) with Roe v. Wade changed him profoundly. Encountering criticism he had never faced before made him more and more angry. In response, he galloped steadily further to the left.
Next, Gerald Ford nominated John Paul Stevens. Although brilliant (he had earned the highest GPA in the history of Northwestern Law School and was himself a former Supreme Court clerk), Stevens had spent only five years as an unexceptional court of appeals judge with no discernible record of taking strong conservative positions. He was a Midwestern Republican, an antitrust lawyer, a leader in the bar, and he seemed a safe and easy choice. Suffice it to say that calculation proved to be a disaster, as Justice Stevens served for three and a half decades and became one of the liberal lions of the Supreme Court.
Even the great Ronald Reagan got half of his Supreme Court nominees wrong. As towering a conservative hero as Reagan was, of the four appointments he made, only two—William Rehnquist and Antonin Scalia—stayed faithful to their oaths. The first justice Reagan named, Sandra Day O’Connor, had been
